Case Law

Washington Supreme Court

Postconviction collateral relief – The Supreme Court may grant postconviction collateral relief in the interests of justice when a criminal defendant’s argument, which was narrowly rejected in his direct appeal, was later adopted in another case.  In re PRP of Rhone, No. 101204-7 (May 11, 2023).

(Editor’s note: Although this opinion expressly disavows applying precedent retroactively, it effectively does just that.  The Supreme Court explains that it gave the Defendant the benefit of the rule concerning jury selection he proposed because his rule was originally rejected in a 4-1-4 split, with the single concurring justice stating that while she agreed with the majority in the Defendant’s case, she agreed with the dissent for future cases.)

Washington Supreme Court:

Animal cruelty – Animal Cruelty in the First Degree is not an alternative means crime.  Starving, dehydrating, or suffocating an animal are different definitions or descriptions of the cruelty required to commit the offense.  No unanimity instruction is required.  State v. Shoop, No. 101196-2 (May 4, 2023).

Division II:

GR 37 – Exercising preemptory challenges against the only two potential jurors who responded to questions about race during voir dire and showed an awareness of “racial justice issues” is improper and will result in reversal under GR 37.  State v. Harrison, No. 55983-8-II (May 2, 2023).

Division III:

Resentencing – When an appellate court reverses a sentence, resentencing is presumptively de novo.  The trial court may consider any and all arguments by both the State and the defendant. State v. Vasquez, No. 38471-3-III (May 2, 2023, unpublished).

(Editor’s note: Although this opinion is unpublished, it announces a significant change in the law.  Prosecutors handling resentencings should anticipate the defense demanding full resentencing hearings anytime any case is remanded for any reason.)

Washington Supreme Court

Community Custody – CrR 7.8(b) does not grant the trial court authority to modify court-imposed community custody conditions after a judgment and sentence is final.  A trial court cannot modify community custody conditions without express statutory authority to do so.  State v. Hubbard, No. 101004-4 (April 27, 2023).

Collateral Attack – All motions brought pursuant to any subsection of CrR 7.8(b) are subject to RCW 10.73.090’s one-year time bar for collateral attacks.  State v. Hubbard, No. 101004-4 (April 27, 2023).

Division II

Juvenile Sex Offender Registration – Sex offender registration is not punishment, so the eight amendment’s bar on cruel and unusual punishment does not prohibit mandatory sex offender registration for juveniles under a Houston-Sconiers analysis.  State v. Domingo-Cornelio, No. 56483-1-II (April 25, 2023).

Open courtroom – Closing the courtroom to hear a motion pertaining to the admissibility of prior sexual activity under the rape shield law does not violate the public trial right.  State v. Hicklin, No. 56077-1-II (April 25, 2023).

Division III

Lesser Included Offenses – Because the mens rea of Burglary is the intent to commit a crime therein, not a knowing trespass, trespass is not a lesser-included offense of Burglary.  State v. Brown, No. 38749-6-III (April 25, 2023).

Breach of plea agreement – An under-18 defendant who entered into a plea agreement to a reduced charge and an agreed lengthy sentence in adult court in 2012 is not now entitled to resentencing based on the mitigating factors of youth.  Rather, seeking such a mitigated resentencing constitutes a breach of the plea agreement by the defendant.  State v. Harris, No. 38217-6-III (April 27, 2023).

Foreign case of interest – Fifth Circuit

A police officer is not deprived of a liberty interest in continued employment as a police officer be being placed on the PID list, which effectively ends his career.  Adams v. City of Harahan, No. 22-30218 (April 14, 2023).

Division II

Firearm Rights Restoration – A person who is prohibited under federal law from possessing a firearm may have his or her rights to possess a firearm under Washington law restored pursuant to RCW 9.41.040(4).  The federal law prohibiting firearm possession by those convicted of a misdemeanor crime of domestic violence does not pre-empt state law.  Kincer v. State, No. 57196-0-II (April 18, 2023).

Division III

Prosecutorial error – Because the prosecutor maintains the Brady list and decides which officers are placed on it, a prosecutor vouches to the veracity of police witnesses by introducing evidence of the “Brady” list at trial, and then arguing to the jury that the police witnesses would not risk being placed on the “Brady” list (and potentially their careers) by lying on the stand.  State v. Stotts, No. 38822-1-III (April 20, 2023).

Missing witness – Although the State may argue that a defendant has produced insufficient evidence to support his factual assertions, the missing witness doctrine must apply before the State may argue that the defendant should have called a natural witness, and the State must raise the issue early enough in the proceedings for the defendant to explain why the witness is not being called.  State v. Stotts, No. 38822-1-III (April 20, 2023).

U.S. Supreme Court

1983 Statute of Limitations – When a prisoner pursues state post-conviction DNA testing through the state-provided litigation process, the statute of limitations for a §1983 procedural due process claim begins to run when the state litigation ends, which includes the denial of a motion to reconsider under the applicable state court rules. Reed v. Goertz, No. 21–442 (April 19, 2023).

Division I:

Double Jeopardy – Although a Petrich instruction alone will not insulate against a double-jeopardy claim, such a claim will fail when the State makes it manifestly apparent that specific acts are the basis of the different counts, and that to convict each act must the distinct and proven beyond a reasonable doubt.  State v. Reedy, No. 83039-2-I (April 10, 2023).

No-contact Orders – Imposition of a lifetime post-conviction sexual assault no-contact Order prohibiting a parent offender from contacting his or her victim child implicates a constitutional right, and so requires an on-the-record analysis which balances: 1) the right to parent; 2) the need for the no-contact order; and 3) whether any viable less-restrictive provision exists.  State v. Reedy, No. 83039-2-I (April 10, 2023).

Division II:

Unlawful Factoring – Unlawful Factoring, RCW 9A.56.290, can only be committed by a “factor,” that is, a person (including a partnership, corporation, trust, or unincorporated association) that acts or transacts business for another.  State v. Restvedt, No. 56856-0-II (April 11, 2023).

Fourth Circuit:

Unvaccinated jurors – The Sixth Amendment’s fair cross-section requirement does not apply to unvaccinated potential jurors; the fair cross-section requirement applies to the jury venire, not the petit, so striking unvaccinated jurors from the venire for cause was not error.  United States v. Colon & Lopez-Alvarado, No. 22-4187 (April 11, 2023).

Division II:

Search & Seizure –  A host does not have authority to consent to a search of a present guest’s grocery bags located inside the host’s premises.  A person has a reasonable privacy interest in grocery bags, which are are “traditional repositories of personal belongings.”  State v. Giberson, No. 56081-0-II (April 4, 2023).

Division III:

Issue preservation – In order to preserve a motion to sever for appeal, the motion must be renewed after some factual basis to support a claim of prejudice has been made.  A motion renewed before any evidence has been introduced, or even proffered, is insufficient to preserve the issue for appeal, as a court cannot abuse discretion based on facts that it does not know.  State v. McCabe, No. 38180-3-III (April 6, 2023).

Legal Update for Washington State Law Enforcement:

March 2023

Supreme Court

Notice of tort action – The presuit notice requirements of chapter 4.96 RCW apply when suing a public employee in their individual capacity, while acting within the scope of employment.  The presuit notice requirements conflict with the procedure for commencing a suit in CR 3(a), but do not violate the separation of powers, as a precondition to suing a government entity is part of the waiver of sovereign immunity, which is within the legislature’s constitutional authority.  Hanson v. Carmona, No. 99823-0 (March 23, 2023).

Division II

Sentencing – The trial court lacks the authority to order firearm enhancements to run concurrently as a downwards exceptional sentence.  State v. Kelly, No. 56461-1-II (March 21, 2023).

Resentencing – A decrease in the offender score that does not change the standard range does not render a judgment & sentence facially invalid.  State v. Kelly, No. 56461-1-II (March 21, 2023).  (Editor’s note: This is the holding of In re: Richardson, which was decided by the Supreme Court in November, but only published last week.)

Supreme Court

Seizure – A transit rider was unlawfully seized when a fare inspection, conducted on a moving bus by an armed sheriff’s deputy, escalated to where the rider was handcuffed.  State v. Meredith, No. 100135-5 (March 16, 2023).

(Editor’s Note: There are five opinions.  The lead opinion, signed by three, would hold that a fare inspection on a moving bus conducted by a pair of armed sheriff’s deputies is a seizure in violation of article I, section 7 of the Washington constitution.  The two separate concurrences, each signed by only one, would not reach the constitutional issue but hold there was no evidence of statutory authority for the sheriff’s deputy to conduct fare inspections.  However, the two concurrences disagree as to whether the fare inspection constitutes a seizure, with one opining it does, and the other opining the defendant was not seized until handcuffing, later in the contact.  The dissent, signed by four, would hold that the fare inspection does not constitute a seizure.  Therefore, five justices agree that the fare inspection was not not a seizure, and five justices agree that there was an unlawful seizure, but for two different reasons, and at two different points in time.)

Resentencing – A reduction of the offender score that does not change the standard range does not render a judgment & sentence facially invalid where the defendant received a standard range sentence.  In re Pers. Restraint of Richardson, No. 101043-5 (November 14, 2022, publication ordered March 10, 2023).

Division I

Right to Present a Defense – The trial court violated the Defendant’s right to present a defense by excluding the testimony of a witness who was 1) not timely disclosed; and 2) couldn’t say for sure that he was home the night of the incident, but was home “about 99% of the time,” and would testify he never heard anyone scream or yell, as the victim testified she had.  The error was compounded by the State’s claim in opening statement that there were no witnesses, which opened the door to the witness’ testimony.  State v. Broussard, No. 83056-2-I (March 13, 2023).

Legal financial obligations – The mandatory $500 victim penalty assessment is still not an excessive fine under the eighth amendment, even if it might be partially punitive.  State v. Griepsma, No. 83720-6-I (March 13, 2023).

Eminent domain – A political subdivision does not lose authority to condemn property for a for a statutorily authorized public use (here, stormwater) just because the project also provides a benefit for which there is no authority to condemn (here, salmon recovery.). City of Sammamish v. Titcomb, et al, No. 83886-5-I (March 13, 2023).

Division III

Postconviction discovery – The State has no obligation to produce discovery materials to a defendant posttrial, absent a showing of good cause.  A defense attorney’s obligation to turn over the client file to the defendant does not transfer to the State.  State v. Albright, No. 38482-9-III (March 14, 2023).

Right to appeal – Absent any evidence in the record to the contrary, a statement on plea of guilty which shows the defendant entered into the plea knowingly, intelligently and voluntarily, together with a 20 year delay, creates a presumption of a valid waiver of the right to appeal strong enough to sustain a state’s motion to dismiss.  State v. D.G.A., No. 38325-3-III (March 16, 2023).

Washington Supreme Court

Resentencing of juveniles sentenced as adults – Offender who was sentenced at age 17 in 2012 to a de facto life sentence, and whose attorney did not present mitigating factors of youth at resentencing, has an adequate remedy in RCW 9.94A.730.  Because RCW 9.94A.730 provides relief as it provides meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, the petitioner cannot show prejudice, and is not entitled to be resentenced.  In re the Personal Restraint of Carrasco, No. 100073-1, No. 100073-1 (March 9, 2023). 

Resentencing of juveniles sentenced as adults – Offender who was sentenced at age 17 to a 37-year sentence was not entitled to be resentenced, even though the sentencing court did not consider the mitigating factors of youth.  Houston-Sconiers’ resentencing mandate is a procedural rule designed to effectuate its substantive rule that juveniles who possessed lower culpability due to the mitigating factors of youth may not receive life sentences without the possibility of release.  RCW 9.94A.730, which effectively converts the determinate life sentence the offender received into an indeterminate sentence, is an adequate remedy.  In re the Personal Restraint of Hinton, No. 98135-3 (March 9, 2023). 

Legal Update for Washington State Law Enforcement

February 2023

Division II

COVID-19 Protocols:  Imposition of COVID-19 protocols are “trial management decisions,” reviewed for abuse of discretion. Here, the trial court did not abuse its discretion by denying a mistrial when defense counsel claimed his ability to communicate with his client was hampered by 1) the use of masks; 2) a (transparent) partition between counsel and client; and 3) some jurors seated behind counsel table during trial (to allow for social distancing.)  State v. Ferguson, No. 55768-1-II (February 28, 2023).

Ninth Circuit

Breach of Plea Agreement – The government impliedly breached the plea agreement for a low-end sentence where it’s presentation and arguments at sentencing, including dwelling on prejudicial information already before the court, emphasizing the damage drugs have had on society, and revealing there was much internal disagreement in the US Attorney’s office about the plea agreement, could only serve to inflame the court with the goal of a higher sentence, which was imposed. While a plea agreement does not require an enthusiastic recommendation, the government may not purport to make the agreed recommendation while “winking at the… court to impliedly request a different outcome.”  U.S. v. Farias-Contreras, No. 21-30055 (Feb. 15, 2023).

Washington Supreme Court

Juvenile Sentencing –

Manifest Injustice – Courts do not incarcerate children because it is good for them.  A juvenile court abused its discretion when it made a manifest injustice determination by placing significant weight on the respondent’s treatment needs without linking those needs to a serious and clear danger to society.

Criminal History – In a disposition hearing, a juvenile court may not consider pending charges that a juvenile offender has not admitted to committing.  However, it was proper for the court, when considering the respondent’s criminal history, to consider the original felony charges in two past plea agreements where the respondent had pled to lesser-included misdemeanors, as the respondent had stipulated to probable cause for the original charges.

JR Commitment over age 21 – The juvenile court may impose an upwards manifest injustice disposition up to age 25 for two categories of juvenile offenses when committed at age 16 or 17: 1) A++ offenses; and 2) violent offenses committed while armed with a firearm.  RCW 13.40.300(2).

Notice – Due process requires adequate notice to a juvenile respondent of the factual basis and aggravating factors which support a manifest injustice disposition prior to the proceeding in which the State seeks to prove them, but not formal, written notice of the State’s intent to seek such a disposition.

State v. J.W.M., No. 100894-5 (Feb. 16, 2023).

Division II

Double Jeopardy – One attempt to have sexual contact with two (fictional) child victims did not merge into one count of Attempted Rape of a Child.  Unlike solicitation, which focusses on the number of solicitations, or conspiracy, which penalizes the conspiracy to commit any number of crimes, criminalizing an attempt aims to punish a substantial step towards each victim.  That the victims were fictitious is irrelevant; impossibility is not a defense.   In re Glant, No. 56383-5 II (February 7, 2023).

Legal Update for Washington State Law Enforcement

January 2023 

Washington Supreme Court

Denial of Assistance of Counsel – Representation at trial by an experienced member of the Idaho bar, who was not legally authorized to practice in Washington, was not a complete denial of assistance of counsel, which would require reversal of the convictions without a showing of prejudice.  In re Pers. Restraint of Lewis, No. 99939-2 (Feb. 2, 2023).

Fair & Impartial Jury – Dismissing frustrated juror who engaged in self-harm during deliberations was not an abuse of discretion.  Such an act raised legitimate concerns about the ability of the jury to deliberate, and did not merit using the more stringent Elmore standard, which asks if there is any reasonable probability the juror’s actions arose from an evaluation of the evidence.  State v. Norman, No. 100777-9 (Feb. 2, 2023).

Division I

Impartial jury & face masks – Jurors wearing face masks during voir dire, which covered their noses and months, arguably making it more difficult to judge their reactions to questions, did not deprive the Defendant of the right to an impartial jury.  State v. Bell, No. 83387-1-I (January 30, 2023).

Double Jeopardy – Assault in the First Degree and Drive-By Shooting, both committed at the same time, did not merge for double jeopardy purposes, as the two crimes contain distinct elements.  State v. Bell, No. 83387-1-I (January 30, 2023).

Same Criminal Conduct – Assault in the First Degree and Drive-By Shooting, both committed at the same time, were separate criminal conduct under the Sentencing Reform Act.  Assault in the First Degree requires an individual victim, whereas the general public is the victim of Drive-By Shooting.  State v. Bell, No. 83387-1-I (January 30, 2023).

Denial of Assistance of Counsel – Defendant was not denied assistance of counsel where trial counsel did not make an opening statement, failed to alert the court the Defendant was falling asleep during trial, failed to object to inadmissible evidence, failed to cross-examine most witnesses, did not move to dismiss a charge for which there was insufficient evidence, attempted to appear at sentencing on a sex offense by phone while simultaneously appearing on another docket, failed to correct a miscalculated offender score, and argued for sentencing alternatives for which the defendant did not qualify.  These are complaints of poor performance, which are better framed as ineffective assistance, which the defense specifically disclaimed.  State v. McCabe, No. 84635-3-I (January 30, 2023).

9^th Circuit

Search & Seizure – Removing a car key fob hanging from a suspect’s belt loop exceeded the scope of a Terry stop for suspicion of trespassing.  The fob was neither a weapon, or part of the trespassing investigation.  The suspect’s claim that he did not have a car did not constitute abandonment of the fob; abandonment requires denial of ownership and physical relinquishment, and the defendant did neither in relation to the fob.  United States v. Baker, No. 20-50314 (January 30, 2023).

Division I

Ineffective Assistance – Despite arguing it in close, defense council was ineffective for failing to request an instruction on revived self-defense, where the evidence could support such an instruction.  State v. Fleeks, No. 82911-4-I (January 23, 2023).

Jury Proportionality – No sixth amendment violation where the defendant failed to show either that representation of black people in the venire was not fair and reasonable in relation to the population, or systemic exclusion. The Court declined to evaluate underrepresentation using comparative disparity, as it distorts underrepresentation in small groups.  And evidence showed that King County made efforts to be systemically inclusive, including separating the county into two jury assignment areas.  State v. Fleeks, No. 82911-4-I (January 23, 2023).

Opinion Testimony – In a recorded interrogation, detective’s exhortation to the defendant, who was denying involvement in a murder, that “…this is probably your last chance to try to make yourself not look so cold-hearted…” was improperly admitted opinion testimony.  State v. Fleeks, No. 82911-4-I (January 23, 2023).

Presumption of innocence – Stationing of a uniformed security guard at an exit door near the witness stand during the defendant’s testimony was not prejudicial, especially since the guard was there all morning and not just when the defendant was on the stand.  State v. Fleeks, No. 82911-4-I (January 23, 2023).

Relevance – In a murder prosecution, the fact that a prosecution witness was on probation for DUI and had lied about alcohol and drug consumption to a probation officer in the recent past was inadmissible, as it was more prejudicial than probative.  State v. Fleeks, No. 82911-4-I (January 23, 2023).

Division III

Merger – Prior conviction for a misdemeanor DUI merged with Vehicular Assault committed while under the influence at the same time when scoring for a current felony DUI.  State v. Gonzalez, No. 38439-0-III (January 24, 2023).

Discovery – In a postconviction motion for his client file from his former attorney, RPC 1.16(d) entitles the offender to the discovery in the file, subject to the redaction procedure in CrR 4.7(h)(3).  State v. Murry, No. 38492-6-III (published January 26, 2023).

Foreign Ethics Case of Interest – Georgia

RPC 4.2 – RPC 4.2 prohibits a defense attorney from contacting a represented co-conspirator who is cooperating with the State without the knowledge or consent of that co-conspirator’s lawyer.  In The Matter of Ashutosh S. Joshi, No. S23Y0155 (Supreme Court of Georgia, January 18, 2023).  (Editor’s Note: Georgia’s RPC 4.2 is phrased slightly differently from Washington’s, but not so much as to make a difference in this situation.)

Washington Supreme Court

Prosecutorial Misconduct – A prosecutor’s flagrant or apparently intentional appeal to jurors’ racial or ethnic bias cannot be cured and is per se prejudicial.  Whether a prosecutor appeals to racial or ethnic bias is decided using an objective observer standard.  The “objective observer” is aware of implicit bias and the history of racial discrimination in the United States.  State v. Bagby, No. (January 19, 2023).

Division I

Post-conviction No-Contact Orders – Defendants don’t get credit for time restrained on post-conviction DV No-Contact Orders.  State v. Smalley, No. 84638-8-I (January 17, 2023).

Washington Supreme Court

Public duty doctrine – Public duty doctrine only protects a public entity when the cause of action arises from a breach of a statutory duty.  Therefore, in a suit alleging breach of a common law duty in an allegedly negligent response to a 911 call for medical assistance, the public duty doctrine will not shield the responding public entity.  Norg v. City of Seattle, No. 100100-2 (January 12, 2023).  (Editor’s note: 5-4 decision, majority authored by Justice Yu.  Justice Madsen’s dissent is worth reading.)

Division II

Jury Selection – When random numbering of potential jurors resulted in a low probability that members of the Defendant’s race would be seated on the jury panel, it was not an abuse of discretion to refuse to change procedures, during jury selection, to bias the process to make it more likely potential jurors of the Defendant’s race would be seated.  State v. McKnight, No. 56250-2-II (January 10, 2023).

Division III

Community Supervision – Community custody is not the same as “community supervision,” as used in RCW 9.94A.589(5), therefore, imposing 36 months of community custody, to run consecutively to the term of community custody the Defendant was serving when he committed his new crime, was not an illegal sentence.  State v. Buck, No. 38382-2-III (January 10, 2023).

Division I 

Waiver of counsel – State’s amendment of the Information, which added a deadly weapon enhancement and increased the maximum possible punishment to life in prison from 10 years, was not a “substantial change in circumstances” that required the court to have a second colloquy with the pro se defendant about his knowing and voluntary decision to represent himself.  State v. Phan, No. 82708-1-I (December 27, 2022). 

Sufficiency of the Evidence – Defendant’s aggressive advance towards the victim in a “scary aggressive” manner while holding a rifle, but never pointing or aiming it at the victim, which made her afraid that he meant some general harm, without more, was insufficient to support a conviction for Assault in the Second Degree under a theory of apprehension of battery with a deadly weapon.  State v. Arntsen, No. 83075-9-I (January 3, 2023). 

Attorney General Opinions 

Police use of force – Chapter 10.120 RCW probably prohibits the police from using physical force when providing emergency aid unless force is otherwise authorized by statute.  Use of “chokeholds” or neck restraints is unlawful, even if used to save human life, but officers may not face civil liability under such a circumstance.  E2SHB 1310 and subsequent amendments (codified as chapter 10.120 RCW) will probably be interpreted to discard the “reasonable officer” standard of Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865, 104 L.Ed.2d 443 (1989) and replace it with a necessary force standard.  AGO 2023 No. 1 (January 2, 2023). 

Legal Update for Washington State Law Enforcement 

December 2022 

2022 Subject Matter Index 

Washington Supreme Court 

Cross-racial identification instruction – In the absence of any evidence of the identifying witness’ familiarity or unfamiliarity with persons of the Defendant’s race, it was not an abuse of discretion to refuse to give a cross-racial eyewitness identification instruction.  Without such evidence, there was nothing the jury could rely on to apply the instruction, and such an instruction could have invited them to speculate about said witness’ familiarity or lack of familiarity with other races.  State v. Butler, No. 100276-9 (December 22, 2022). 

Preemptory Challenges – A party may not appeal the seating of a juror if the party could have struck that juror with a preemptory challenge.  Parties are obliged to use their preemptory challenges to strike jurors they unsuccessfully moved to excuse for cause.  A party may only appeal the jury’s composition if the party exhausted their preemptory challenges.  State v. Talbott, No. 100540-7 (December 22, 2022). 

Division II 

Statutory interpretation – Appellant, convicted of selling drugs within 1000’ of a school bus route stop, argued the provision of RCW 69.50.435(1) which doubles the statutory maximum punishment for the offense, only applied to subsection (j), the last list item, which immediately precedes the text discussing “doubling.”  Division II rejected the argument, holding that, semicolon usage notwithstanding, such an interpretation would render list items (a) – (i) superfluous.  State v. Richter, No. 55881-5-II (December 13, 2022). 

Protected zone enhancements under the UCSA – The Blake decision does not invalidate the enhancement for trafficking drugs within 1000’ of a school bus route stop, just because a drug dealer might deal drugs without knowing he or she is close to such a stop.  Trafficking in drugs is affirmative action, unlike unknowingly carrying someone else’s meth in borrowed pants.  Nor is the statute unconstitutionally vague.  “School bus route stops” are easily ascertainable; drug dealers need only observe the gathering of children in the morning, or ask the school district where the stops are, if they are concerned they are selling drugs too close to such stops.  State v. Richter, No. 55881-5-II (December 13, 2022). 

Resentencing – Where the State did not argue harmless error, remand for resentencing was appropriate when the offender score should have been calculated at 23, not 24.  State v. Richter, No. 55881-5-II (December 13, 2022). (Editor’s note – Both the majority and concurring opinion strongly suggest that Division II is open to harmless error arguments in resentencing cases where a defendant’s recalculated offender score does not affect the standard range.) 

Division III 

Prior DUI offenses – An Idaho order “withholding judgment” is a “deferred prosecution granted in another state,” and therefore a “prior offense” as defined by RCW 46.61.5055(14), and so serves as a predicate offense for felony DUI.  State v. Gregory, No. 38743-7-III (December 22, 2022). 

9th Circuit 

Garrity – Adopts a “subjective-objective” test for determining if a statement is “coerced.”  For a statement to be “coerced,” the employee must be both: 1) objectively threatened with a substantial adverse employment consequence for refusing to incriminate him or herself; and 2) be subjectively aware of that penalty.  In Wells, neither the employment manual requiring employees to provide full and truthful answers during any inquiry or investigation, or the prior disciplinary history with a letter of caution warning of future penalties for additional incidents, either alone or in combination, created an “impermissible penalty situation” which would render the federal employee defendant’s noncustodial statements to the FBI “coerced.”  “A statement is not ‘coerced’ just because there is a ‘speculative possibility of termination.’”  U.S. v. Wells, 20-30009 (December 14, 2022). 

Foreign ethics case of interest – New Jersey Supreme Court Disciplinary Review Board: 

Candor to the tribunal – Defense attorney pled his client to two separate DWIs in two different courts on the same day.  At the second plea, only the attorney and his client were aware of the plea that had taken place a few hours earlier.  The attorney represented to the second court that his client had no priors, resulting in a second first offender sentence for his client.  At his disciplinary hearing, the responding defense attorney argued, in part, that he had no duty to inform the court that his client had already pled to his first DWI earlier that morning, and he would have been ineffective for doing so.  The Disciplinary Board held that an attorney’s duty of candor to the tribunal requires defense attorneys to act affirmatively against their client’s interests when they are in possession of a material fact, even when it is not their primary responsibility to inform the court of that fact.  In the Matter of David S. Bradley, An Attorney at Law, Supreme Court of New Jersey Disciplinary Review Board, DRB 21-230 (2022). 

Division I

EVIDENCE – The trial court’s evidentiary ruling to exclude evidence that two witnesses were trespassing when they were seen with the victim did not violate the defendant’s rights under ER 403, the Sixth Amendment, or article I, section 22.  Here, the probative value of the witnesses’ trespassing was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.  The trial court did not abuse its discretion by declining to admit the evidence.  Further, excluding the evidence did not violate the defendant’s Sixth Amendment right to confront the witnesses against him because ER 403 is a well-established, commonly utilized rule that has been applied time and again without any demonstrated detriment to the fairness of the proceedings, and the defendant was still able to present his theory of the case and attack the credibility of the witnesses.  ((Note:  This case provides a helpful explanation of how appellate courts approach a defendant’s claim that an evidentiary ruling violated their constitutional right “to present a defense,” which is more properly characterized as the defendant’s right to confront the witnesses against them.  Additionally, the case reiterates that “the Confrontation Clause guarantees only ‘an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.’”)) State v. Ritchie (12/5/22)

JURY MANAGEMENT – The trial court’s ex parte dismissal of a sick juror after the jury was selected, but before deliberations began, was fundamentally an administrative process.  “When alternate jurors remain, the pre-deliberation, ex parte dismissal of a seated juror who has become unable to perform their duties is not a critical stage under either a defendant’s right to counsel or a defendant’s right to be present.” State v. Booth (12/5/22)

JURY SELECTION – There is no constitutional right to the use of peremptory challenges in criminal jury selection under either Washington Constitution article I, section 21 alone, or in conjunction with Washington Constitution article, I section 22.  Here, the trial court erred in denying the defendant’s for cause challenge to a prospective juror who said that “it might be hard to be impartial,” denied that she could follow the law, and explicitly said “no” when asked whether she could be a fair and impartial juror.  Further questioning did not rebut or soften the juror’s statements of partiality.  Nonetheless, the defendant’s use of a peremptory challenge to strike the juror ensured that no biased juror sat on the final jury.  Only when a biased juror sits on the final jury is the constitutional guarantee of an impartial jury implicated and appealable. State v. Booth (12/5/22)

MERGER – The legislature intended that the offenses of felony violation of a no-contact order (FNVCO) and attempting to elude a police officer be punished separately, even when they arise from the same underlying acts.  Thus, the offenses do not merge. State v. Booth (12/5/22)

POAA – Imposing a mandatory life sentence without the possibility of parole on three counts of second-degree assault (the defendant’s third strike offense) did not violate the state and federal constitutional guarantee against cruel and unusual punishment.  The defendant’s punishment was not grossly disproportionate to the offense of second-degree assault. State v. Ritchie (12/5/22)

Division II

PRPs – The defendant’s judgment and sentences are facially invalid because they contain an incorrect offender score that included one point for possession of a controlled substance, which was held unconstitutional in State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021).  The incorrect offender score is a fundamental defect resulting in a complete miscarriage of justice even though the defendant stipulated to the offender score in the negotiated plea agreement.  Correcting the offender score would lower the bottom of the standard range for each conviction, and the low end of the range was a central factor in the negotiated plea agreement and the trial court’s sentence.  The defendant’s petitions are granted and the cases remanded for resentencing where the State may ask the trial court to first determine whether the defendant has breached his plea agreement where he previously agreed that filing a CrR 7.8 motion would breach the plea agreement. In re Sylvester  (12/6/2022)

Washington Supreme Court

PRPs – A petitioner does not establish actual and substantial prejudice solely by showing a procedural error under State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017).  To determine whether a Houston-Sconiers error is prejudicial, courts consider where the imposed sentence falls within the standard range and whether the sentencing judge: (1) was presented with and considered the mitigating qualities of the offender’s youth, (2) understood their discretion, and (3) articulated that they would have imposed a lower sentence if they could.  Here, the petitioner fails to demonstrate by a preponderance of the evidence that he would have received a lower sentence had the sentencing judge fully understood her discretion to impose a sentence below the standard SRA range because the judge was presented with and considered the petitioner’s youthfulness and imposed an above mid-range minimum term. In re Forcha-Williams (12/1/22)

State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), is not material or retroactively applicable to a mandatory indeterminate maximum life sentence because an indeterminate sentence provides an opportunity for release for those who demonstrate rehabilitation, alleviating the concern that an indeterminate sentence will be disproportionate in light of juveniles’ reduced culpability.  Further, if a petition claims two separate exceptions to the time bar and one claim fails, the “mixed petition rule” does not preclude consideration of a claim that the judgment and sentence is facially invalid under RCW 10.73.090.  Here, the judgment and sentence is not facially invalid because the State failed to specify the intended felony underlying the petitioner’s second-degree assault conviction.  The untimely petition is dismissed. In re Williams (12/1/22)

SENTENCING – When sentencing juveniles, the Eighth Amendment, as interpreted by State v. Houston-Sconiers, 188 Wn.2d 1, 391 P.3d 409 (2017), affords judges the discretion to impose only a sentence below the minimum term in an indeterminate sentence when required by the mitigating qualities of the offender’s youth.  Sentencing courts lack discretion to lower the maximum term in an indeterminate sentence or impose a determinate sentence where the legislature requires an indeterminate sentence. In re Forcha-Williams (12/1/22)

Legal Update for Washington State Law Enforcement

NOVEMBER 2022

Division II

ASSAULT 3 – Insufficient evidence existed to convict the defendant of third-degree assault where the State relied solely on the defendant’s hands to prove that the defendant used an “instrument or thing likely to produce bodily harm” under RCW 9A.36.031(1)(d).  Hands are not a utensil, implement, or inanimate object.  Because there is no evidence that the defendant used anything other than his hands to assault the victim, the State failed to present sufficient evidence that the defendant used an “instrument or thing” to assault the victim. State v. Altman (publication ordered 11/15/22)

FIREARM SURRENDER – The former firearm surrender statutory scheme, RCW 9.41.800, requiring certain defendants subject to a protection order to surrender their firearms and file proof of surrender (or a declaration of nonsurrender) is unconstitutional.  The former statutory scheme violates the Fifth Amendment and article I, section 9 by forcing defendants to incriminate themselves by signing a declaration after they have been prohibited from owning or possessing firearms.  The former statutory scheme also violates the Fourth Amendment and article I, section 7 by requiring defendants to search their own homes, seize their firearms, and convey them to law enforcement without reasonable suspicion or probable cause.  The trial court did not err in vacating the defendant’s surrender order and dismissing the prosecution for noncompliance with the surrender order.  ((Note: In 2021, the Legislature overhauled the statutory scheme for protections order and added an immunity provision to firearm surrender orders issued pursuant to RCW 9.41.800.  Hopefully this solves the self-incrimination problem.)) State v. Flannery (11/22/22)

Division III

CHARGING – For purposes of the general-specific rule, third-degree malicious mischief and second-degree arson are not concurrent statutes, meaning that the State can charge both offenses.  A person can commit second-degree arson (the specific statute) without also committing third-degree malicious mischief (the general statute) by causing a fire or explosion to their own property.  The defendant’s conviction for attempted third-degree malicious mischief is affirmed. State v. Moose (11/22/22)

HARMING A POLICE DOG – For purposes of the harming a police dog statute, RCW 9A.76.200(1), “maliciously” means “an evil intent, wish, or design to vex, annoy, or injure” a police dog.   State v. Moose (11/22/22)

Washington Supreme Court

APPELLATE PRACTICE – The State bears the burden of reconstructing a lost or damaged record in a criminal appeal.  The Rules of Appellate Procedure anticipate that parties will work together to recreate the verbatim transcript, or alternatively a narrative or agreed report of proceedings.  If the parties disagree or encounter problems during the reconstruction process, then their recourse is to appear before the trial court.  Additionally, the Court of Appeals did not abuse its discretion in declining to bifurcate the defendant’s speedy trial issue from the rest of his appeal. State v. Waits (11/17/22)

Ethics Opinions

Notice of AG Opinion Request

Out of State Case of Interest

Prior Defense Attorney, Ethical Screening, and Disqualification – In a murder case, one of the public defenders who represented the defendant, was hired by the DA’s Office prosecuting the case. The trial court found that the DA’s office followed their screening procedure with the new hire and that they properly screened the new prosecutor from this case. The newly hired prosecutor also prosecuted a case with a different defendant, who he had represented in a limited bond hearing. The court found that there was a “potential” that the special prosecutor would violate the screening policy in this case and disqualified the full office. In an interlocutory appeal, the Colorado Supreme Court ruled that the trial court abused its discretion by disqualifying an entire DA’s office when they followed their screening process, and the defendant couldn’t establish he was unlikely to “receive a fair trial.” People v. Solis (11/14/2022)

Division I

PRO SE – The trial court violated the defendant’s constitutional right to self-representation by denying his request to proceed pro se.  The defendant’s request was timely made 11 months before trial, and unequivocal in a written motion to proceed pro se and in repeated oral requests.  A defendant’s request may be unequivocal even when it is motivated by frustration with counsel’s performance.  Further, the defendant’s request was knowing, voluntary, and intelligent where the trial court failed to conduct a proper colloquy.  Here, the trial court repeatedly asked why the defendant wanted to represent himself but failed to ask any questions regarding the voluntariness of the defendant’s request, or whether he understood the scope and consequences of his request.  If a judge has concerns about a defendant’s competency to decide to proceed pro se, then the court should conduct an inquiry on that matter, or order an evaluation.  ((Note:  If a defendant requests to proceed pro se, then please try your best to ensure that the court handles it properly or you might face reversal on appeal.))   State v. Sabon (11/7/22)

LFOs – Article 1, section 14 of the state constitution provides no greater protection against excessive fines than the Eighth Amendment.  Imposing restitution, the accruing interest, and the victim penalty assessment does not violate the excessive fines clauses of the state and federal constitutions where a defendant is indigent and unable to pay.  Requiring the defendant to pay the costs of the physical injuries that he inflicted is not grossly disproportional to his crimes and does not violate the state and federal excessive fines clauses.   State v. Ramos (11/7/22)

Division III

LFOs – Amendments to statutes imposing costs on criminal defendants apply to cases on appeal.  Here, the defendant is entitled to the benefit of amended RCW 9.94A.703 – authorizing the sentencing court to waive community custody supervision fees – because her conviction was pending appeal and thereby not final. State v. Wemhoff (11/3/22)

GR 37 – The erroneous denial of a peremptory challenge under GR 37 does not implicate the defendant’s constitutional right to a jury trial because there is no constitutional right to peremptory challenges.  Here, the trial court properly sustained the State’s GR 37 objection to the defendant’s peremptory challenge of the lone Black juror on the venire based on her detached and disinterested demeanor.  Defense counsel’s failure to bring his concerns to the attention of the court and opposing counsel prior to the close of questioning as required by GR 37(i) invalidated the purported justification for the peremptory challenge. State v. Hillman (11/3/22)

EVIDENCE – The trial court properly admitted loan documents in a forgery prosecution where the State presented evidence that the documents had been falsified and that the defendant was involved in creating and executing them.  “A witness need not have been present at the creation of a document in order to authenticate its contents.”  Further, the loan documents are not hearsay because they were not authored or admitted for the truth of the matters asserted.  Rather, the State proffered the documents to show that they were false. State v. Hillman (11/3/22)

Legal Update for Washington State Law Enforcement

October 2022

ABA Ethics Opinion

Reply to All

Division I

SOLICITATION – A “thing of value” under Washington’s solicitation statute, RCW 9A.28.030(1), must have monetary value.  Here, the defendant’s conviction for solicitation to commit murder in the first degree is reversed because the defendant’s statement to her son that they would be “together forever” after the son poisoned his father to death is not a thing of value.    State v. Valdiglesias LaValle (10/10/22)

PRIVACY ACT – The trial court properly admitted a secretly recorded conversation between the defendant and her son under the exception for threats of bodily harm.  Here, the son recorded his mother telling him how to poison his father (the defendant’s ex-husband) and cause him to die.    State v. Valdiglesias LaValle (10/10/22)

Division II

SIXTH AMENDMENT – The trial court deprived the defendant of his right to counsel when it refused to appoint him an additional attorney.  Although the defendant’s dissatisfaction with his three appointed attorneys resulted in several substitutions of counsel and delay, he did not forfeit his right to counsel through “extremely dilatory” conduct, such as by threatening counsel or refusing to communicate with counsel.  The defendant did not waive his right to counsel by conduct because the trial court failed to inform him of the risks of proceeding pro se.  Further, the trial court violated the defendant’s right to confrontation, self-representation, and presumption of innocence by forcing the defendant to question the child victims through standby counsel, and by allowing the child victims to face away from him while testifying, without analyzing why such measures were necessary and the impact that they would have on the defendant’s rights. State v. Palmer (amended opinion 10/11/22)

FIFTH AMENDMENT – The State violated the defendant’s right against self-incrimination when it elicited comments from the detective about the defendant’s post-arrest silence.  Here, the State inquired whether the detective spoke to the defendant after his arrest and overnight confinement.  The detective commented on the defendant’s right to remain silent by testifying that he went back to the jail thinking the defendant “would want to do the right thing” and “talk,” and the defendant declined to speak. State v. Palmer (amended opinion 10/11/22)

SENTENCING – The trial court did not err in denying the defendant’s CrR 7.8 motion to withdraw his guilty plea because the defendant was eighteen years old at the time of the murder and consequently the trial court was permitted but not required to consider the mitigating qualities of youth at sentencing. State v. Nevarez (10/25/22)

The sentencing court properly refused to add one point to the defendant’s offender score because he committed the crime while on community custody for possession of a controlled substance, an unconstitutional and void conviction under State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021). State v. Rahnert (10/18/22)

DRUG COURT – The defendant’s termination from Drug Court violated procedural due process where the court failed to (1) inform the defendant of the reasons he was being terminated, (2) advise the defendant that he had the right to contest the termination and alleged violations at an evidentiary hearing, (3) state that it had determined that the defendant had violated the drug court agreement by a preponderance of the evidence with the burden of proof on the State, and (4) enter written or oral findings indicating the evidence that it relied on in terminating the defendant from Drug Court.  Further, the defendant knowingly, voluntarily, and intelligently waived his right to appeal the sufficiency of the evidence of his convictions. State v. Harrison (10/18/22)

Division III

SEARCH & SEIZURE – Under common law, a Washington deputy sheriff can authorize the presence and participation of out-of-state law enforcement officers during the execution of a search warrant.  Here, the Idaho officers were not arresting a suspect or otherwise enforcing the law, but rather acting at the direction of the lead Washington deputy to aid her in the execution of a search warrant. State v. Chambers (10/4/22) (published in part)

INFORMATION – The defendant’s postverdict challenge to the information alleging that the defendant “knowingly . . . disseminated” and “knowingly possessed” depictions of minors engaged in sexually explicit conduct is rejected.  Considering the charging document as a whole and in a commonsense manner, the essential knowledge elements that the defendant had knowledge of the act (disseminating or possession) and knowledge of the nature of the depictions could be fairly inferred through a liberal construction of the information. State v. Chambers (10/4/22) (published in part)

IAC – Defense trial counsel provided effective assistance when he pursued an “all-or-nothing” strategy at trial and declined to seek a lesser included jury instruction on fourth-degree assault where the defendant was charged with second-degree assault.  Counsel’s decision was deliberate and strategic, and did not prejudice the defendant at trial. State v. Conway (10/27/22)

Washington State Supreme Court

GR 37 – The trial court’s determination under GR 37 of whether an objective observer could view race or ethnicity as a factor in using a peremptory challenge is reviewed de novo.  Here, the defendant’s third-degree rape conviction is reversed because an objective observer could view race as a factor in the State’s use of peremptory challenges to strike two jurors of color. State v. Tesfasilasye (10/6/22)

((Note:  This is the state supreme court’s first case analyzing a trial court’s GR 37 determination.  In my personal opinion, the takeaway is that you should not use a peremptory challenge to strike a BIPOC juror because there is a strong likelihood that your case will be reversed on appeal.  Although reasonable minds can and do differ when analyzing jurors’ responses in jury selection – for example, Division One reached the opposite conclusion in this case and affirmed – the “could” standard weighs heavily in favor of juror inclusion and is very difficult to overcome.  Nonetheless, for-cause challenges are available when a juror expresses an inability to be fair and impartial.))

EVIDENCE – The trial court did not abuse its discretion by admitting a drug rehabilitation and testing center incident report under the business records exception pursuant to RCW 5.45.020.  Here, the incident report relied on firsthand observations from an employee who observed the UA test in the regular course of his professional duties and documented his observations as required by the center’s procedures.  The employee’s observations did not consist of opinion or conclusions relying on specialized skill, judgment, or discretion.  The report was created within 24 hours of the incident for internal business purposes (and not as evidence to be used at trial), and was introduced through a records custodian.  No evidence was produced that otherwise called into question its reliability. In re Welfare of M.R. (10/13/22)

POST-SENTENCING – When deciding whether to vacate a conviction under RCW 9.94A.640, a trial court must verify that the movant (1) committed a qualifying felony, (2) obtained a certificate of discharge, (3) is not disqualified under RCW 9.94A.650(2)(a) (e.g. pending criminal charge, or insufficiently long conviction-free waiting period), and (4) has demonstrated sufficient postconviction change to show rehabilitation.  The trial court cannot deny relief based on the seriousness of the crime.  Here, the trial court abused its discretion in denying the defendant’s motion because it treated the qualifying conviction as a bar to eligibility and it failed to meaningfully consider the extensive uncontradicted evidence of rehabilitation and mitigation. State v. Hawkins (10/27/22)

The plain language of RCW 13.50.260(3) authorizes a trial court to vacate and seal a juvenile’s adjudication.  Before granting a motion to vacate and seal, the trial court must (1) confirm that the movant meets the criteria to seal, (2) verify that the record has not already been administratively sealed, and (3) consider the record and use its discretion to determine if the movant has demonstrated sufficient rehabilitation to warrant vacation and sealing. State v. Garza (10/20/22)

RACIAL BIAS & VERDICTS – The plaintiff, a Black woman, established a prima facie case that an objective observer could view race as a factor in the verdict where defense counsel, a white woman, in closing argument (1) repeatedly characterized the plaintiff as “combative” and “confrontational” evoking the stereotype of an “angry Black woman,” (2) contrasted the plaintiff with the defendant, a white woman, who was “rightly” “intimidated” and “emotional” inviting the jury to make decisions based on biases about race, aggression, and victimhood, (3) suggested the plaintiff’s injuries were minimal, that she was exaggerating or fabricating her injuries, and motivated by financial gain appealing to negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy, (4) insinuated that the plaintiff’s witnesses, who were all Black women, had colluded to each describe the plaintiff as the “life of the party” prior to the collision inviting jurors to suspect the witnesses as a group and make decisions based on biases about race and truthfulness, and (5) implied that the plaintiff’s chiropractor was likely to lie for her because she worked for him opening the door to speculation that plays directly on prejudice about race and sexuality.

The trial court abused its discretion by failing to grant an evidentiary hearing to determine whether an objective observer aware that implicit, institutional, and unconscious bias, and purposeful discrimination, have influenced jury verdicts in Washington could conclude racial bias was a factor in the verdict.  On remand, the case is reassigned to a different judge to conduct the evidentiary hearing.  If the evidence permits an inference that an objective observer could conclude racial bias was a factor in the verdict, then the plaintiff has made a prima facie showing that a new trial should be ordered and the trial court must presume that racial bias affected the verdict.  The party seeking to preserve the verdict bears the burden of proving that racial bias did not affect the verdict.  If that burden is not met, then the trial court must order a new trial.   There is no harmless error analysis. Henderson v. Thompson (10/20/22)

((Note:  Although this is a civil case, its holding and analytical framework regarding racial bias and verdicts applies equally to criminal cases.  The opinion reveals the intense scrutiny that may be applied to the examination of, and arguments made about, people of color.  The objective observer standard “speaks to possibility, not certainty, and to impact, rather than intent.”  The safest course is to (1) explicitly tie your arguments to the evidence presented at trial and the credibility factors articulated in WPIC 1.02, and (2) avoid characterizing the demeanor of the defendant and witnesses, and instead invite the jury to draw their own conclusions about the witness’s answers, tone of voice, and manner while testifying.  This is a tricky and charged area of law.  Feel free to reach out with questions.))

Out of State Case of Interest

Protests, Conflict of Interest, and Prosecutor Political Ads – Respondents are college students who face criminal charges for marching through the City of San Luis Obispo following the murder of George Floyd, Jr. in 2020. The trial court granted their motion to recuse District Attorney Dan Dow’s office from the case because of Dow’s well-publicized association with critics of the Black Lives Matter movement. (Penal Code, § 1424.) 1 The District Attorney and Attorney General appeal. As the trial court stated: “[N]o defendant is entitled to a prosecutor to which they are politically or socially or ideologically aligned.” “The men and woman charged here,” however, “are entitled to a prosecution not clouded by political or personal advantage to the prosecutor.” Substantial evidence supported the trial court’s determination that Dow and his office were not likely to treat respondents fairly. We affirm the order granting respondents’ motion to recuse. California v. Lastra (9/28/22)

Court of Appeals for the 9^th Circuit

Eighth Amendment, Anti-Sleeping, and Martin v. Boise – The panel affirmed in part and vacated in part the district court’s summary judgment and its permanent injunction in favor of plaintiffs; affirmed certification pursuant to Fed. R. Civ. P. 23(b)(2), of a class of “involuntary homeless” persons; and remanded in an action challenging municipal ordinances which, among other things, preclude homeless persons from using a blanket, a pillow, or cardboard box for protection from the elements while sleeping within the City’s limits. The five ordinances, described as an “anti-sleeping” ordinance, two “anti-camping” ordinances, a “park exclusion” ordinance, and a “park exclusion appeals” ordinance, result in civil fines up to several hundred dollars per violation. Persons found to violate ordinances multiple times could be barred from all City property. If a homeless person is found on City property after receiving an exclusion order, they are subject to criminal prosecution for trespass. The panel stated that this court’s decision in Martin v. City of Boise, 902 F.3d 1031 (9th Cir. 2018), which held that “the Eighth Amendment prohibits the imposition of criminal penalties for sitting, sleeping, or lying outside on public property for homeless individuals who cannot obtain shelter” served as the backdrop for this entire litigation. Addressing the merits, the panel affirmed the district court’s ruling that the City of Grants Pass could not, consistent with the Eighth Amendment, enforce its anticamping ordinances against homeless persons for the mere act of sleeping outside with rudimentary protection from the elements, or for sleeping in their car at night, when there was no other place in the city for them to go. The panel held that Martin applied to civil citations where, as here, the civil and criminal punishments were closely intertwined. Johnson v. City of Grants Pass (9/28/2022)

Ethics Opinions

ABA – Formal Opinion 502

Virginia Supreme Court and copying a client in the email 

Division II

ITA – The superior court properly admitted expert testimony about the non-testifying treatment team’s observations and interactions with the patient under ER 703 as the factual basis for the expert’s opinion.  Admitting the testimony did not violate the patient’s procedural due process rights. In re Det. of L.S., (9/20/2022)

Jury Instructions – The trial court did not abuse its discretion by declining to provide an instruction on first-degree manslaughter, which requires a finding of recklessness, as a lesser included offense of first-degree murder, which requires a finding of extreme indifference.  Although the defendant testified that he fired high and to the right, which could support giving an instruction on first-degree manslaughter, the defendant’s testimony was directly contradicted by video evidence and his stipulation that a video still showed him standing square and firing multiple rounds from a semi-automatic handgun straight toward the crowded bar entrance.  No jury could rationally determine that the defendant acted recklessly rather than with extreme difference. State v. Avington (9/27/2022)

Division I

Preaccusatorial Delay – The defendant’s first-degree felony murder conviction is reversed and dismissed with prejudice because the State’s preaccusatorial filing delay violated the defendant’s due process rights.  Here, the filing delay actually prejudiced the defendant because a key eyewitness died months after the State filed charges and was unavailable for trial.  The State’s reasons for the negligent filing delay, specifically the heavy caseload of the assigned prosecutor and the defendant’s lengthy incarceration on another case, are significantly outweighed by the actual prejudice to the defendant.  The State violated the fundamental conceptions of justice by failing to file a murder charge with well-developed probable cause for 12 years, despite repeated status inquiries from other investigators and government actors involved in its investigation and preparation for prosecution. State v. Stearns (9/19/2022)

Prosecutorial Misconduct – An objective observer aware of the history of race and ethnic discrimination against Latinx people could view the prosecutor’s references twice in closing to the term “Mexican ounce” to describe the way heroin was packaged for sale as an apparently intentional appeal to the jury’s potential bias, specifically a suggestion that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.  “Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.”  The defendant’s conviction is reversed. State v. Ibarra-Erives (9/19/2022)

VUCSA – Sufficient evidence established that the defendant constructively possessed heroin and methamphetamine with intent to deliver where the defendant admitted to living in a bedroom where police found a backpack containing individually packaged drugs next to a digital scale and box of plastic sandwich bags.  At the time of the search, police found an amount of cash on the defendant consistent with drug sales and drug paraphernalia used to smoke methamphetamine.  Considering the evidence in the light most favorable to the State, a rational trier of fact could conclude that the defendant exercised dominion and control over the backpack and its contents. State v. Ibarra-Erives (9/19/2022)

Legal Update for Washington State Law Enforcement 

September 2022

Supreme Court

Juveniles, De facto Life, Article I, Section 14 – “Haag is properly understood as announcing that article I, section 14 of Washington’s constitution limits the category of juvenile offenders who can receive de facto life without parole (LWOP) sentences, the harshest punishments possible for juvenile offenders under Washington law. In Haag, we determined that a particular juvenile offender could not receive such a harsh punishment because his crime reflected youthful immaturity, impetuosity, and failure to appreciate risks and consequences. But when, as here, a juvenile offender’s crimes do not reflect those mitigating qualities of youth, Washington’s constitution does not bar a de facto LWOP sentence.” State v. Anderson (September 8, 2022)

Record Request, Writ of Mandamus, GR 31 – A county sought all audio recordings from a trial after concerns were raised that the trial judge’s demeanor and tone may have prejudiced its case against a former employee. The audio recordings were the property of the court reporter. The judge denied the first request. Additional requests went to the Superior Court under GR 31, and to the County through a public record request. Later the county requested administrative records under GR 31. Each request was unsuccessful. The County then filed a mandamus requiring the Presiding Judge to produce the responsive records. “We dismiss King County’s petition because it fails to demonstrate why we should grant the extraordinary remedy of a writ of mandamus. In doing so, we hold that a superior court presiding judge is not the proper subject of a writ of mandamus to turn over audiotapes or other records under GR 31 or GR 31.1. Additionally, King County has a plain, speedy, adequate remedy that precludes issuing a writ of mandamus.” King County v. Sorensen (September 8, 2022)

Court of Appeals for the 9^th Circuit

Confrontation, Exception for Medical Diagnosis, and Primary Purpose – “The panel affirmed a conviction for assault resulting in serious bodily injury, a violation of 18 U.S.C. § 113(a)(6), in a case in which Taloa Latu, an inmate at a federal detention center, repeatedly punched and kicked inmate Joseph Yamaguchi, who suffered multiple serious injuries. Yamaguchi did not testify, but the district court admitted his statements—that he was assaulted and that his pain level was an eight out of ten—through the testimony of a nurse and a surgeon who treated him. Latu argued that admitting this testimony violated the rule against hearsay and the Confrontation Clause of the Sixth Amendment. The panel held that the district court properly admitted the statements made by Yamaguchi to his medical providers, as the statements fell within the hearsay exception for statements made for purposes of medical diagnosis or treatment under Fed. R. Evid. 803(4). The panel also held that admission of these statements did not violate the Confrontation Clause because their primary purpose was to evaluate and treat Yamaguchi’s injuries rather than to establish past facts for trial.” US v. Latu (August 31, 2022)

Court of Appeals, Division I

EVIDENCE – The trial court did not abuse its discretion, or violate the defendant’s Sixth Amendment right to present a defense, by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.  Although the hearsay statements were at least minimally relevant to explain the basis for the expert’s opinion, admitting them could confuse or mislead the jury because they concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low because they were inadmissible as substantive evidence, and were relevant only for the limited purpose of providing additional context for the expert’s opinion.     State v. Caril (August 29, 2022)

CONFRONTATION CLAUSE – The municipal court properly excluded the defendant’s toxicology results where the primary forensic scientist who handled, prepared, tested, and interpreted the defendant’s blood samples, was unavailable to testify.  Admitting the test results through the forensic scientist’s supervisor violates the defendant’s constitutional right to confrontation because the supervisor did not test the defendant’s blood, or add any original analysis to the forensic scientist’s work that inculpated the defendant.  Rather, the supervisor conducted a five- to ten-minute review of the primary scientist’s report for general accuracy and typographical errors. City of Seattle v. Wiggins (August 29, 2022)

APPELLATE PRACTICE – A superior court sitting in its appellate capacity on RALJ reviews factual issues for substantial evidence and legal issues de novo.  RALJ 9.1(b).  Here, the superior court erred by ignoring the municipal court’s findings of fact and conducting de novo review of the evidence, despite the City’s failure to assign error to any of the findings.  Unchallenged findings of fact are verities on appeal.  The municipal court’s findings of fact and conclusions of law are reinstated and the RALJ order is reversed. City of Seattle v. Wiggins (August 29, 2022)

Court of Appeals, Division II

PRPs – The state supreme court’s decisions in City of Seattle v. Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017), and State v. Jefferson, 192 Wn.2d 225, 230, 429 P.3d 467 (2018) (plurality), are significant changes in the law that are material to the petitioner’s conviction.  The decisions apply retroactively because they established new constitutional rules that are at least partly substantive.  Consequently, the petition is not time-barred.  Nonetheless, the petition is successive and must be transferred to the state supreme court for consideration under RAP 16.4(d). In re Pers. Restraint of Rhone, (August 23, 2022)

Court of Appeals, Division III

CrR 3.3 – TIME FOR TRIAL – Court congestion and routine backlogs at the Washington State Patrol (WSP) Crime Laboratory do not justify continuing a defendant’s time for trial beyond the period provided by CrR 3.3.  Here, the trial court abused its discretion by granting continuances solely based on routine crime lab delay processing DNA results.  Notably, “[n]o detailed, admissible evidence of the reasons for the back-up, efforts taken to get around it, or a reasonably short time frame within which trial could be held was offered by the prosecutor or demanded by the court.”  The defendant’s rape and other convictions are reversed, and the charges dismissed with prejudice.    State v. Denton (August 30, 2022)

Legal Update for Washington State Law Enforcement

August 2022  

Court of Appeals

COMMUNITY CUSTODY – State v. Charlton, (8/9/22) 

A community custody condition prohibiting possession of “a computer or any computer components” is not crime related where there was no evidence that the defendant used a computer or any computer components in the commission of the crime.

COMPETENCY – State v. Vevea, (8/9/22) 

The criminal discovery rules, including CrR 4.7, apply in competency restoration proceedings.  Here, the State should have provided the defendant with the treatment records from his previous restoration commitments upon which the State’s expert relied.

LFOs – State v. Tatum, (8/8/22) 

The Victim Penalty Assessment (VPA) and DNA collection fees are constitutional as applied to indigent defendants, and not excessive under either the federal or state constitutions.  The excessive fines clauses in the federal and state constitutions are coextensive.

SIXTH AMENDMENT – State v. Charlton, (8/9/22) 

The defendant’s constitutional right to counsel attached when he appeared for his second preliminary hearing because at that point the defendant had been formally charged, his liberty was restricted, and the court conducted a preliminary hearing that was part of adversary judicial criminal proceedings.  The second preliminary hearing was a critical stage in the criminal proceedings because the trial court addressed and imposed bail.  The trial court’s failure to appoint counsel for that hearing violated the defendant’s constitutional right to counsel.  Nonetheless, the violation was not structural error requiring automatic reversal because the constitutional violation did not “pervade” or “contaminate” the entire proceeding.  The trial court’s imposition of bail had no effect on the remainder of the case since the defendant was released 10 days later at arraignment.  The error was harmless beyond a reasonable doubt given the defendant’s failure to identify how his brief detention impacted the trial, the verdict, or the bail amount.

UNLAWFUL RECREATIONAL FISHING – State v. Simmons, (8/16/22) 

The defendants’ convictions for first and second degree unlawful recreational fishing are affirmed.  The court rejected the defendants’ claim that as members of the Cowlitz Indian Tribe, they had off-reservation aboriginal rights to harvest clams without a license, and in excess of the daily limit.  The off-reservation rights of the Cowlitz Tribe to fish were extinguished by the 1863 Lincoln Proclamation and related congressional authorizations.  Further, the defendants’ aboriginal rights to fish are not protected by Washington civil rights law under State v. Towessnute, 197 Wn.2d 574, 486 P.3d 111 (2021), which involved a member of the Yakama tribe whose off-reservation rights were protected by a treaty.

Washington State Supreme Court

PRPs – In re Pers. Restraint of Davis, (8/11/22) 

The personal restraint petition is dismissed because it is untimely and does not meet any of the claimed exceptions to the one-year time bar.  In re Pers. Restraint of Monschke, 197 Wn.2d 305, 482 P.3d 276 (2021) (plurality opinion), is not material because the petitioner was convicted under a different statute, the court had discretion to depart from the standard range based on youth, and he was outside the age range of the petitioners who received relief in Monschke (aged 18-20 years old).  Further, recent neurological studies of late-aged adolescents are not newly discovered evidence.  Even assuming such studies are newly discovered evidence, the petitioner fails to show that such evidence is material to his sentence where he and his associates planned to seek retribution and sought out the murder victim, attacking him in the middle of traffic.  The petitioner does not show that the outcome of his sentence would have changed had he been able to present newly discovered developmental research on late aged adolescents.

Court of Appeals

Constitutionality of LFOs, Victim Penalty Assessment (VPA), and DNA – After the court imposed a VPA and DNA fee as part of the sentence, the defendant appealed. RCW 7.68.035(1)(a) requires “[w]hen any person is found guilty in any superior court of having committed a crime . . . there shall be imposed by the court upon such convicted person a penalty assessment.” RCW 43.43.7541 states that “[e]very sentence imposed for [specific crimes] must include a fee of one hundred dollars unless the state has previously collected the offender’s DNA as a result of a prior conviction.” “Our state Supreme Court has determined that the VPA fee is constitutional, and we cannot reconsider the issue. Precedent from this court establishes the same of the DNA fee.” State v. Tatum (August 8, 2022)

Dependency, Pick-Up Order, and Indian Child Welfare Act (ICWA) and the Washington State Indian Child Welfare Act (WICWA) (Editor’s note: The court withdrew its prior opinion and filed this new opinion. While there are minor changes to some citations, the majority of the revisions to the opinion relate to “Active Efforts” on page 18 – 19) – “We conclude that entering a pick-up order without first holding a hearing did not violate A.K.’s due process rights. We also conclude that when the Department has reason to believe that a child is an Indian child under ICWA and WICWA, the heightened removal standard in those statutes applies to ex parte pick-up order requests. Because the Department had reason to know that A.W. is an Indian child—information not shared with the trial court—and the trial court applied an incorrect legal standard in assessing the Department’s evidence at that stage of the proceeding, the trial court erred in not vacating the pick-up order.” In Re Dependency of A.W.  (August 8, 2022)

Fifth Amendment Invocation and Negative Inference, Continuation of Parent-Child Relationship, and Termination of Parental Rights – A mother in a dependency invoked her Fifth Amendment right when asked about whether she was using drugs. The court drew a negative inference from that invocation, and after additional evidence about her inability to care for her child, terminated her parental rights. While the Fifth Amendment is applied only to criminal proceedings, it can be invoked in civil proceedings to ensure that incriminating testimony in a civil matter cannot be used by the State later in criminal proceedings. But if an individual invokes their Fifth Amendment right, a court may draw a negative inference from that invocation, and the court did so in this case. RCW 13.34.180(1) prescribes the elements courts must balance when terminating parental rights. The sixth element is “that continuation of the parent and child relationship clearly diminishes the child’s prospects for early integration into a stable and permanent home.” The court found the mother’s relationship would hinder the child’s ability to be adopted and stabilize in a permanent home, and substantial evidence supporting the trial courts conclusion. In Re Dependency of A.M.F.  (August 8, 2022)

Right to Counsel, Critical Stage in Criminal Proceedings, and Prejudice– An individual was arrested and held for 72 hours on allegations of sexually assaulting his daughter. During his initial appearance he did not have a defense attorney. After the State filed charges, the defendant appeared without counsel. The court set bail and continued arraignment a few days. At arraignment, the defendant appeared with counsel and was granted release. The judge later found the defendant guilty of child rape and child molestation. The defendant challenged his convictions because he lacked counsel at a critical stage of the proceedings. A superior court is required to bring an individual before it as soon as practicable after detention, “but in any event before the close of business on the next court day.” CrR 3.2.1(d)(1). A court must provide a lawyer at the “preliminary appearance” pursuant to rule CrR 3.1. See CrR 3.2.1(e)(1). And the right to an attorney accrues as soon as feasible after the individual is “taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest.” CrR 3.1(b)(1). The court assumes, without deciding, that the right to counsel applied during his initial court hearing during the 72-hour hold. The court finds that his right to counsel attached after he was charged and appeared for arraignment, without counsel.

A critical stage requires an examination of the nature of the hearing. If an individual risks waiving any rights or foregoing any defenses, make an admission of guilt, forfeits any right to plead guilty or plead not guilty by reason of insanity, or allow any right or defense to go unpreserved, a court may find such a hearing a critical stage. In this case, during arraignment without counsel, the court confirmed the individual’s name, advised him of certain rights, informed him of the filed charges, and imposed bail. The court found that the first arraignment was a critical stage of the proceeding because the State had filed charges and the court set bail. The court found that this error was harmless because setting bail had no effect on the remainder of the case. “We conclude that when a defendant is deprived of the right to counsel at a critical stage in the criminal proceedings, the presumption of prejudice applies only when the violation pervades and contaminates the entire case.”State v. Charleton (August 9, 2022)

Competency Restoration, Discovery, and CrR 4.7 – After an individual assaulted his mother and would not let her leave a room for several hours, the State charged him with multiple crimes. The trial court found the individual incompetent and imposed two 90-day periods of competency restoration. The State sought a 180-day restoration, and in response the individual requested a jury trial. Prior to the competency trial, the individual’s attorney sought treatment records the State relied upon. The State did not provide the records and the trial court suggested that defense should have sought those records by subpoena, as a competency hearing was a civil hearing. On appeal the State conceded that criminal rules of discovery apply in a competency trial because of the fundamental liberty interests of pretrial detainees awaiting competency restoration. The court found that “competency restoration proceedings are subject to criminal discovery rules, including CrR 4.7.” State v. Vevea (August 9, 2022)

Supreme Court

Murder in the First Degree, Monschke and Retroactivity, and 21-Year-Olds – The defendant was 21 years old when he was convicted of murder in the first degree and second-degree attempted murder. He filed a PRP more than a year after his J&S became final, claiming that Monschke constituted a significant change in the law and should be applied retroactively. “Davis does not meet any of the claimed exceptions to RCW 10.73.090’s one-year time bar. He does not show that Monschke constitutes a significant, retroactive, and material change in the law. RCW 10.73.100(6). Davis also fails to show that RCW 10.73.100(1)’s newly discovered evidence exemption applies, and, even assuming it does, he fails to show that recent developmental evidence on late-aged adolescents constitutes such newly discovered evidence or that his sentence would have changed had he been able to present it. Davis’s PRP is untimely. Therefore, we affirm the Court of Appeals’ order dismissing Davis’s petition.”  In re Pers. Restraint of Davis (August 11, 2022)

Shelter Care, Reasonable Efforts, and Emergent Circumstances – RCW 13.34.065(5)(a) provides guidance on whether a court should release a child to someone other than its parent or guardian. It includes a requirement that “reasonable efforts have been made to prevent or eliminate the need for removal of the child” prior to release. In this case, the Department did not have much time prior to the shelter care hearing and had imminent concerns about the child’s safety, such that it argued it should be excused from the reasonable effort requirement. The court found that there is no exception to the “reasonable effort” requirement. It also ruled that the department must take reasonable efforts, consider the facts and circumstances of each parent, and balance these against the goals of child safety and family stability. The legislature has not defined reasonable efforts but provides a list of services that may be offered in RCW 13.34.025. This list can guide lower courts to decide whether the Department’s action meets the undefined standard. In re Dependency of L.C.S. (August 11, 2022)

Investigations, Liability, and Immunity – RCW 4.24.595 provides statutory immunity in certain circumstances for the Department during emergent placement investigations of child abuse or neglect. The court uses footnote fifteen to distinguish the limits of immunity that prosecutors and law enforcement have to the level of immunity sought for by the department. Ultimately, the court found the Department to be liable for its investigative conduct. “RCW 4.24.595(2) grants the Department liability immunity for actions taken to comply with court orders. Because the Department’s investigation and issuance of the founded letter—both of which form the bases for the parents’ negligent investigation, negligent infliction of emotional distress, and invasion of privacy by false light claims—are required by statute, not court order, these functions exceed the scope of immunity granted by the statute. Contrary to the Department’s position, RCW 4.24.595(2) does not effectively nullify precedent establishing the Department’s liability for negligent investigation resulting in a harmful placement decision. Nor does it undo precedent supporting tort liability for the Department to encourage accountability, preventing future misconduct and providing a potential remedy to those harmed by the Department’s negligence in child abuse/neglect investigations.” Desmet v. State (August 11, 2022)

Court of Appeals

PRA and Adequate Search, Constructive Denial by Delay, and Penalties – When public records are properly requested, the PRA requires an adequate search that is reasonably calculated to uncover all relevant records. RCW 42.56.070, .520. What is reasonable depends on the facts and circumstances of each case. A search does not need to be perfect and the failure to locate and produce a record is not a per se violation of the PRA. A search may be adequate and still fail to identify responsive records. Nonetheless, a search that is unnecessarily narrower than a request is generally not adequate. Here the court found the district’s search was inadequate to reasonably produce records responsive to the request.

Whether a constructive denial has occurred is based on an objective standard from the requesters’ perspective and will depend on the circumstances of each case. And whether an agency was reasonably diligent in responding to a records request or ignored a request for an extended period of time is a factual issue. Courts may find that a requester is a prevailing party under the PRA if suit was reasonably necessary to obtain the records requested and caused the release of the records. Courts consider the totality of circumstances to determine if the agency was providing the fullest assistance to inquirers and the most timely possible action on requests for information. In this case, the court found that the district was not diligent even though they had other record requests, various employment projects, and other work to perform. The court found that they inappropriately allocated resources and this request lacked priority.

Agencies shall not deny a request for identifiable public records solely on the basis that the request is overbroad. After applying a broad interpretation, if any ambiguity remains, it is incumbent upon the agency to clarify that ambiguity. Withholding or redacting a nonexempt document violates the PRA under RCW 42.56.210(3). Portions of records that are not exempt must be produced pursuant to RCW 42.56.210(1). Here, the District failed to review, redact, and disclose information from seventy-five separate attachments, some including spreadsheets with thousands of student names on hundreds of pages. While nonresponsive student names would be exempt, some of the records on some of the pages may have been responsive, and the court remanded for further findings on this issue.

A party who demonstrates a PRA violation is entitled to costs and attorney fees. The decision to impose a penalty, and the amount of the penalty are within the trial court’s considerable discretion. Under the Yousoufian cases the Supreme Court provided seven mitigating and nine aggravating factors. Even though the trial court imposed a penalty, on appeal the court found that penalty to be too lenient for numerous reasons, including a demonstrated lack of priority given to PRA requests, the lack of resources the district put into responding to PRA requests, actual delay in response, and lack of communication. Cantu v. Yakima School District (August 2, 2022)

Appeal, Resentencing, and Appellate Permission – After the defendant was convicted of a few crimes, including simple possession, the defendant appealed his sentence. State v Blake was decided before the appeal was resolved. The defendant sought, and the trial court resentenced the defendant based on Blake. Prior to resentencing none of the parties sought approval from the appellate court to amend the judgement that was the subject of the appeal. “RAP 7.2 limits a trial court’s authority to act on a case during the pendency of an appeal. Under RAP 7.2(e), it is possible for a trial court to change or modify a decision that is under review. However, doing so requires permission from the appellate court prior to formal entry of an amended trial court decision. RAP 7.2(e).” The appellate court voided the amended J&S and returned for resentencing. State v. Edwards  (August 2, 2022)

Unlawful Detainer, Eviction Moratorium, Order of Limited Dissemination – Seattle’s Union Gospel Mission entered an unlawful detainer act against a tenant during a period when the State of Washington and Seattle had eviction moratoriums. The trial court dismissed the action but denied a request by the tenant to limit the dissemination of that suit under RCW 59.18.367. An issue raised on appeal, but left undecided, was whether the tenant fell under the Residential Landlord Tenant Act (RLTA). The court found that a judge has authority to limit the dissemination of the suit, without deciding whether the landlord fell under the RLTA. Union Gospel Mission v. Bauer  (August 1, 2022)

Production of a Witness List, Time for Trial, and Government Mismanagement – The trial court dismissed a case based on CrR 8.3 for government mismanagement because the state had not produced a witness list on the omnibus hearing pursuant to CrR 4.7(a)(1)(i), nor did it file such a list within two weeks prior to trial, pursuant to a local court rule. The court dismissed even though the state had produced discovery, a notice that the witnesses would “include all those named and referenced in discovery…,” and the State filed a witness list four days prior to trial. Part of the trial courts reasoning was its calculation of time for trial, which the court believed would expire roughly two weeks from the date of the motion to dismiss. Dismissal for CrR 8.3 violations is an extraordinary remedy. A trial court may dismiss only if there is governmental mismanagement, and it prejudices a defendant’s right to trial. On appeal, the court found that the State mismanaged discovery by failing to provide a witness list, with addresses and substance of statements as required at the omnibus hearing. However, the trial court abused its discretion when it dismissed the case because the trial judge improperly calculated time for trial. When a trial date has been continued, the time between continuance and the new trial is excluded. “[T]he allowable time for trial shall not expire earlier than 30 days after the end of that excluded period.” CrR 3.3(b)(5). A brief continuance for additional contact with witnesses would have cured the potential prejudice to the defendant. State v. Mora-Lopez  (August 1, 2022)

Legal Update for Washington State Law Enforcement

July 2022

Court of Appeals

Dependency, Pick-Up Order, and Indian Child Welfare Act (ICWA) and the Washington State Indian Child Welfare Act (WICWA) – The due process clause of the Fourteenth Amendment protects a parent’s right to the custody, care, and companionship of their children. This right cannot be abridged without due process of law. In this context, due process requires parents have notice, an opportunity to be heard, and the right to be represented by counsel. RCW 13.34.050 provides numerous safeguards and is sufficient to protect a parent from an unacceptable risk of the erroneous deprivation of custodial rights. ICWA and WICWA have a higher burden during an emergency removal or placement of a child than does the removal during the emergency hearing of a non-Indian child under RCW 13.34.050. Here the Department should have known that the child may be an Indian child, and the court should have evaluated the request under ICWA and WICWA. Ultimately, the court found that entering a pick-up order without first holding a hearing does not violate a parent’s due process rights. And, if the Department has reason to believe that the child subject to a pick-up order is an Indian child, the heightened standard under the ICWA and WICWA apply. In the Matter of Dependency of A.W. (July 22, 2022)

Jury Selection, Juror Bias, Duty of a Court to Act – RCW 2.36.110 states, “[i]t shall be the duty of a judge to excuse from further jury service any juror, who in the opinion of the judge, has manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service.” During voir dire, a potential jury asked about the immigration status of the defendant. The juror had additional colloquy with the attorneys, neither party struck the juror, and they were seated on the jury panel. The court found that this comment and colloquy demonstrated ethnic bias sufficient to raise a prima facie showing that he was unqualified to sit as a juror in the case. Not every question raised about immigration is sufficient to justify disqualification. But in this case, the court found that RCW 2.36.110 required the trial court to either inquire further or excuse the juror as disqualified. State v. Gutierrez  (July 28, 2022)

Supreme Court

Jury Selection, Peremptory Challenge, and Failure to Disclose – “In light of the current, limited role of peremptory challenges in Washington jury trials, we now hold that a motion for a mistrial or new trial may not be granted solely because undisclosed information about a juror might have triggered a peremptory challenge. Instead, juror nondisclosure must be treated similarly to other nonconstitutional errors that require a new trial only on an affirmative showing of prejudice. Such a showing may be made if the moving party shows that the undisclosed information would have supported a valid challenge for cause or that the nondisclosure was otherwise prejudicial to the moving party’s right to a fair trial.” State v. Lupastean  (July 28, 2022)

Personal Restraint Petition, Newly Discovered Evidence and Brain Science, and Significant Change in the Law and In re Pers. Restraint of Monschke – The defendant was nineteen when he killed an 11-month-old child in his custody. He was convicted and the court sentenced him in 2007. He filed his PRP in 2019. He argued that the brain science of adolescents was “newly discovered evidence” and should overcome the time bar under RCW 10.73.090(1). He also argued that In re Pers. Restraint of Monschke constitutes a significant and retroactive change in the law that is material to his sentence. The court found that both arguments failed. He could have made the argument in 2007 regarding the brain science of adolescents. Further, a sentence of mandatory life without parole (LWOP) under RCW 10.95.030 for the crime of aggravated first-degree murder was unconstitutional as applied to 19- and 20-yearold defendants. Here, the defendant was neither convicted of aggravated first-degree murder nor sentenced to mandatory LWOP. In re Pers. Restraint of Kennedy  (July 28, 2022)

Court of Appeals for the 9^th Circuit

Social Media, 1^st Amendment, and 42 U.S.C. § 1983 – “The Garniers’ claims present an issue of first impression in this Circuit: whether a state official violates the First Amendment by creating a publicly accessible social media page related to his or her official duties and then blocking certain members of the public from that page because of the nature of their comments. For the following reasons, we hold that, under the circumstances presented here, the Trustees have acted under color of state law by using their social media pages as public fora in carrying out their official duties. We further hold that, applying First Amendment public forum criteria, the restrictions imposed on the Garniers’ expression are not appropriately tailored to serve a significant governmental interest and so are invalid. We therefore affirm the district court judgment.” Garnier v. O’Connor – Ratcliff  (July 27, 2022)

Display of a Firearm, Probable Cause, and RCW 9.41.270 – “This case requires us to determine whether there was probable cause to arrest Marc Anthony Willy for displaying a weapon in a manner that “warrant[ed] alarm for the safety of other persons.” Wash. Rev. Code § 9.41.270(1). Willy was arrested after two people separately reported that a man in a truck had displayed a firearm while asking them questions about an alleged kidnapping in the area. After his arrest, a search of Willy’s vehicle and person recovered illegal firearms and a modified CO2 cartridge. Willy was charged with making and possessing a destructive device in violation of the National Firearms Act, 26 U.S.C. § 5861. The district court granted Willy’s motion to suppress all evidence and statements obtained after his arrest because his arrest was not supported by probable cause. We affirm.” US v. Willy  (July 26, 2022)

Court of Appeals for the 11^th Circuit

Material Witness Warrant, Prosecutorial Immunity, and 42 U.S.C. § 1983 – “This appeal requires us to decide whether absolute prosecutorial immunity protects an assistant district attorney from suit for failing to ensure the cancellation or recall of a material witness warrant. In this case, an assistant district attorney in Fulton County, Georgia, Antionette Stephenson, obtained a material witness warrant requiring Kidanemariam Kassa to appear as a witness at trial. Kassa voluntarily appeared at trial, making execution of the warrant unnecessary. After the trial ended, Stephenson failed to inform the trial judge that the warrant needed to be recalled. A few months later, a police officer arrested Kassa and placed him in jail because of the outstanding warrant. A judge eventually ordered Kassa’s release. Kassa brought a 42 U.S.C. § 1983 action alleging, among other things, that Stephenson’s failure to initiate the warrant’s cancelation violated his Fourth and Fourteenth Amendment rights.

“After careful consideration, and with the benefit of oral argument, we hold that absolute prosecutorial immunity does not extend to Stephenson’s failure to take action to cancel the warrant. The district court thus erred in dismissing Kassa’s complaint. We reverse and remand to the district court for further proceedings.” – Kassa v. Fulton County Georgia, et. al. (July 18, 2022)

Court of Appeals

Duty of Care, Independent Contractor, and Delegation – A business relied on independent contractors to inspect, clean, and maintain its facilities. An employee from one of those independent contractors fell through a skylight while cleaning the roof and died as a result. The risk was known to the business and the independent contractor. Employees of an independent contractor qualify as invitees on a possessor’s premises, and generally are entitled to expect that the possessor will make its premises safe. Generally, a possessor is not liable when an independent contractor’s negligence injures one of its own employees, unless its own negligence causes the injury. A possessor may choose to exercise reasonable care by contractually delegating its duty over to the competent and experienced independent contractor itself. Here the business fulfilled its duty to the deceased by making a reasonable delegation of its duty to the deceased employer, the independent contractor. Eylander v. Prologis Targeted U.S. Logistics Fund (July 18, 2022)

Public Records Act, Relocation Act, and Real Estate Exemptions – RCW 42.56.260(1)(a) states that an agency may redact information related to real estate appraisals for the acquisition or sale of property “[e]xcept as provided by chapter 8.26 RCW.” RCW 8.26 is the “Relocation Act.” The only provision in that act that addresses providing information regarding property acquisition is RCW 8.26.180(3). From these statutes the court determined that “appraisal information is exempt from disclosure under the PRA except for a request from the owner of the property being appraised.” Further, RCW 42.56.260(1)(b) exempts “[d]ocuments prepared for the purpose of considering the selection of a site or the acquisition of real estate by lease or purchase when public knowledge regarding such consideration would cause a likelihood of increased price.” The word “considering,” or “consideration” necessarily encompasses the entire acquisition process that culminates in the final purchase of the property. Ekelmann v. City of Poulsbo (July 19, 2022)

Supreme Court

Shelter Care Hearing, Washington Indian Child Welfare Act (WICWA), and Active Efforts – In a split opinion, the Court found that consistent with the plain text and purpose of WICWA, the State is required to take “active efforts” to prevent the breakup of a family before taking a child into emergency foster care. The court also concluded that the trial court was required to make a finding on the record at the interim shelter care hearing, not just the emergency shelter hearing, that a child’s out of home placement was necessary to prevent imminent physical damage or harm. In re Dependency of J.M.W. (July 21, 2022)

Enabling Act, Trust Land, and Exercise of Discretion – On February 22, 1889, the United States government passed the Enabling Act to admit Washington and a handful of other states to the Union. The government granted Washington several hundreds of thousands of acres of land “for the support of common schools” that were to be “held, appropriated, and disposed of exclusively for the purposes” of those schools. Enabling Act §§ 10, 17. Washington’s Constitution was ratified seven months after the enabling act and article XVI, section 1 states that “[a]ll the public lands granted to the state are held in trust for all the people.” Generating revenue from timber harvests helps boost local economies and maintain state institutions. Because the general population of Washington stands to gain from increased economic, educational, and governmental stability, DNR’s land management strategies do not violate article XVI, section 1. Conservation Northwest v. Commissioner of Public Lands (July 21, 2022)

Court of Appeals

Double jeopardy.  It was not a violation of double jeopardy to punish the defendant separately for both felony murder 1 predicated on arson and arson 1.  A store employee was killed in an arson fire set in the store.  Even though the crimes were the same offense under Blockburger and arson is a lesser of felony murder predicated on arson, double jeopardy was not violated because the arson here had an effect independent of the murder.  The arson caused injury to the owner of the property and other businesses in the building, in addition to the homicide victim.  

Expert opinion.  The trial court did not abuse its discretion in admitting a fire marshal’s opinion as to the locations of the origins of this arson fire:  that a fire originated on or near the homicide victim’s body.  Although the expert did not follow an industry standard (NFPA 921), the court acted within its discretion to conclude that testimony based on the witness’s undisputed expertise and observation of the scene would be helpful.  Further, any error was harmless. 

Excessive bail – mootness.  Defendant’s claim that the trial court set pretrial bail without applying the factors set out in CrR 3.2(c) is moot.  The appellate court can’t provide relief as to pretrial bail after a defendant has been convicted. 

Right to counsel.  The lack of defense counsel at a preliminary hearing was not structural error requiring reversal of the eventual convictions.  That hearing was not a critical stage where the court only confirmed the defendant’s name and DOB, appointed counsel, and set bail, stating it was willing to revisit bail.  The defendant did not forfeit any rights or defenses that would substantially affect the outcome of the case.  Assuming it was constitutional error to set bail in defense counsel’s absence, that was harmless beyond a reasonable doubt.

Ineffective assistance of counsel re bail.  Defendant did not establish that his attorney’s failure to ask the trial court to revisit the amount of bail was deficient performance or caused prejudice. 

State v. Heng (Div. 1, July 11, 2022)  83280-8

Legal financial obligations – PSEA.   After the defendant’s third alcohol-related driving offense within 7 years, the trial court found that applicable fines and fees were $4300.  The court waived the entire amount due to the defendant’s indigence.  It then imposed a PSEA (public safety education assessment, per RCW 3.62.090) of $1102.50, a percentage of the fines and fees, based on its conclusion that it assessed the fines and fees before it waived the obligation.  Held:  the PSEA statute refers to imposing the PSEA based on fines and fees “assessed” and that means only the amount the court ultimately required the defendant to pay.  Adding a PSEA to fines and fees that have been waived based on indigence is both unjust and an absurd result.  City of Seattle v. Kopperdahl  (Div. 1, July 11, 2022)  82248-9

Supreme Court

Time for trial.  A defendant loses the right to object to an untimely trial date under CrR 3.3(d)(3) if the untimely trial date is selected before the time-for-trial period expires but the defendant fails to raise an objection until after the time-for-trial period expires.  Under these facts, once the time-for-trial period expires without an objection being raised, the defendant can’t obtain dismissal under CrR 3.3(d)(3).  The defense attorney’s knowledge that the trial date set is untimely is irrelevant (avoiding any perceived conflict between the defense attorney’s duty of candor to the court and their duty to their client to achieve the best outcome).  State v. Walker  (July 14, 2022)  99813-2

Court of Appeals

ITA, Professional Staff, and Signing the Petition – RCW 71.05.230 provides legal requirements to file a petition for involuntary treatment. In this case, the facility petitioned, and the court granted a 14-day commitment. A.C. challenged the commitment because one of the medical professionals who signed the petition attempted but did not examine him. On appeal, the court denied the challenge because the statute only requires a signor to personally examine a patient when the petition is based on substance use disorder treatment, rather than mental health treatment (see RCW 71.05.230(4)(a)(ii)). In the Matter of the Detention of A.C. (July 5, 2022)

Supreme Court

De Minimis Facts, Exceptional Sentence, and Robbery – The State convicted an individual of robbery in the second degree for stealing groceries from a market and after leaving without paying, punching a security guard who attempted to stop him. After the jury convicted him, he argued the court should give him an exceptional sentence below the standard range because the crime was de minimis. The trial judge disagreed, and the Supreme Court affirmed. The SRA provides a nonexclusive list of mitigating circumstances that can support an exceptional sentence below the standard range, and “under RCW 9.94A.535(1), the de minimis nature of a crime can constitute a substantial and compelling factor that supports an exceptional sentence below the standard range, in the appropriate case. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.” State v. Thomason [As part of the concurrence, Chief Justice Gonzalez references an article about prosecutor discretion. That can be found here.] (July 7, 2022)

Legal Update for Washington State Law Enforcement

June 2022

Court of Appeals

Self-Incrimination, Prosecutor Misconduct, Jury Compensation, Concurrent and Consecutive Sentences, and Mitigation of Youth – The defendant was convicted in her involvement in two murders with co-defendants. This case involves numerous challenges to numerous issues. This review does not attempt to cover each.

One co-defendant asserted his Fifth Amendment right against self-incrimination. While the co-defendant had already pled guilty, he timely filed a PRP. The court ruled that when a PRP has been timely filed, and the petition gives rise to a good faith argument for postconviction relief, the privilege against self-incrimination may apply. The trial court did not abuse its discretion in granting that privilege.  

The defendant claimed the prosecutor committed misconduct by using a video with a caption, where the fact in the caption later proved to be inaccurate. The video of the defendant holding the murder weapon was admissible later in trial. The trial court found that there was no bad faith in the prosecutors opening statement related to the fact in the caption. And further it is unlikely the State’s remarks prejudiced the defendant.

The defense challenged the juror compensation of $10 a day, arguing it violated her constitutional rights. For a multitude of reasons, the court disagreed. For example, jury service is not a fundamental right, and while low compensation may make it difficult for a juror to serve, it does not create favoritism, and does not implicating the privileges and immunity clause.

A court has authority to run consecutive sentences concurrently by way of an exceptional sentence. Here the court stated it did not have that authority, but indicated even if it did, it would not do it. The court’s statement that it did not have the authority while incorrect, was harmless.

A court has the authority to consider the youthfulness of the defendant, even if the individual is older than 19 or 20. Here the court considered the fact that the defendant was twenty-one, her background, financial situation, peer pressures, and the extent she participated in the crime. The trial court did not abuse its discretion in denying a request for an exceptional sentence based on youthfulness. State v. Meza (June 27, 2022)

Search Warrants, Blake, and Severability – In 2017, officers contacted the defendant and sought a search warrant of an associated vehicle to search for evidence of the crime of possession of controlled substance and possession of drug paraphernalia. During the search, officers found a loaded gun. In 2021, defense filed a motion to suppress the firearm because the search was based off of the now unconstitutional simple possession law, State v. Blake. The Fourth Amendment to the US Constitution, and article 1, section 7 of the Washington Constitution require searches to be conducted “upon probable cause” and with “authority of law.” A later determination that a statute is unconstitutional does not necessarily invalidate an earlier finding of probable cause. Further, probable cause does not depend on whether the suspect committed a crime. If a suspect is later acquitted, for example, it is irrelevant to the validity of the arrest. In this case the officers relied upon the unconstitutional statute “only to the extent that those statutes contributed to the determination of probably cause, not for the authority to arrest.” Even if probable cause did not support the search, the warrant can be severed and the portion that remains involved a search for drug paraphernalia, which provides a separate basis for the search. State v. Moses (June 27, 2022)

Joinder of Offenses, Joinder of Defendants, and Sex Crimes – The defendant challenges the courts joinder of offenses that alleged he and his brother both sexually abused their stepbrothers. Before a court joins offenses of a single defendant for trial it must analyze the “Bluford” factors: strength of the State’s evidence on each case, clarity of defense as to each count, court instructions to the jury to consider each count separately, and the admissibility of evidence of the other charges even if not joined for trial. On the other hand, CrR 4.3(b) allows two or more defendants to be joined in the same charging document under several circumstances. A court must consider the likelihood of undue prejudice if the State moves for joinder. In sex cases, special prejudice can arise when evidence of a defendant’s prior sex crimes is admitted under ER 404(b) on grounds that it is a “common scheme or plan.” Although ER 404(b) has no application when evidence of a different person’s rapes has relevance in a case (ER 403 may still apply). If joined, the charges are consolidated for trial unless the court orders severance under CrR 4.3.1. In this case, the trial court properly joined two defendants for trial on related sex crimes. State v. Martinez (June 28, 2022)

Judicial Notice of Public Records, Discretionary Governmental Immunity and Professional Rescuer Doctrine, and Writ of Mandamus – A sheriff deputy was killed on duty responding to a crime. The county had fewer deputies employed than previous audits suggested necessary, and the death occurred while the deputy was in a rural area of the county without backup nearby. The family of the deceased deputy filed for damages against the county related to the lack of available deputies at the time of his death and asking the court to issue a writ of mandamus to mandate sufficient staffing. The court rejected each claim.

ER 201(b) grants authority for a court to take judicial notice of publicly available information not included in a pleading. Here, the court appropriately considered numerous publicly available documents on the county website about lack of deputies in the county, along with items like the recruiting, hiring, and training efforts.

Under RCW 4.96.010 the legislature has waived sovereign immunity for local governmental entities. The Supreme Court, however, has created a very narrow exception which includes discretionary acts at an operational level. A police department’s determination on how to use law enforcement resources available to it are legislative-executive decisions. Workplace safety laws do not define with specificity how local law enforcement staffing decisions must be made. For example, it does not force counties into decisions related to number of deputies, types of training, or precise mandates on how to mitigate risk. Therefore, claims by the family of the deceased deputy do not overcome the discretionary governmental immunity.

The professional rescue doctrine is an exception to the general rescue doctrine. A professional rescuer assumes certain risks as part of the job, is compensated for those risks, and a court will bar recovery generally if it applies. Here the deceased deputy assumed risks when he went to the scene of a crime as a law enforcement officer to respond to a family in danger. The claims by the deputy’s family do not overcome the professional rescue doctrine.

A writ of mandamus is a rare and extraordinary remedy that require courts to order another branch of government to take a specific action. However, it cannot require specific action which involve discretion on the part of the public official. In this case, the county has discretion on how it fulfills workplace safety, and a court cannot issue a writ of mandamus in such a situation. Estate of McCartney, et al. v. Pierce County (June 28, 2022)

Supreme Court

Prosecutor Race-Based Misconduct, Voir Dire, and Dismissal – “This case involves the issue of whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.” To prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice. However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict. “To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” State v. Zamora (June 30, 2022)

Indecent Exposure, Deferred Sentence, and Prior Conviction – Under RCW 9A.88.010(2)(c) a charge for indecent exposure is a class C felony if the individual has previously pled guilty to a misdemeanor count of indecent exposure. In this case the defendant challenged his felony conviction because the underlying predicate conviction was dismissed as a deferred sentence. RCW 3.66.067 governs dismissals of misdemeanor convictions. It reads, “[a]fter a conviction, the court may impose sentence by suspending…or deferring the sentence of the defendant….” The court found that for indecent exposure, a deferred sentence, even though it is subsequently dismissed, is a conviction for purpose of proving a predicate crime for felony indecent exposure. State v. Conway (June 30, 2022)

Court of Appeals for the 9^th Circuit

Brady Training, Monell, and County Liability – If a plaintiff establishes he suffered constitutional injury by the county, the fact that individual officers are exonerated is immaterial to liability under § 1983. Specifically in this case, the plaintiff alleges that the lack of any training or policy on Brady by the county law enforcement agency resulted in critical exculpatory evidence being withheld by the prosecution. Irrespective of the merits of these claims, the district court erred by not addressing whether the plaintiff could show that he suffered a constitutional injury by the County unrelated to the individual officers’ liability under § 1983. The case was remanded for further hearings. Richards v. County of San Bernadino (June 24, 2022)

Court of Appeals

CrR 7.8, Oral Argument, and Written Findings – CrR 7.8 governs motions for postconviction relief, and CrR 7.8(c) sets the procedures for such collateral attacks. CrR 7.8(c)(2) requires transfer of a postconviction motion for consideration as a personal restraint petition (PRP) unless the motion is not time barred and “either the defendant has made a substantial showing of merit or a factual hearing is required to decide the motion.” The trial court is prohibited from deciding the merits of a motion if those conditions are not met. But if one of those conditions is met, then CrR 7.8(c)(3) states the superior court “shall enter an order fixing a time and place for hearing and directing the adverse party to appear and show cause why the relief asked for should not be granted.” CrR 7.8 does not require that a superior court hold oral argument on every postconviction motion and does not require remand for entry of written findings for each part of a motion when the decision allows review. State v. Frohs (June 16, 2022)

Supreme Court

Witness ID During a Photo Montage, Scientific Research, and Essential Elements of Robbery – The due process clause of the Fourteenth Amendment bars the admission of eyewitness identification evidence obtained through suggestive police procedures, unless the evidence is nevertheless reliable under the totality of circumstances. Courts must consider new, relevant, widely accepted scientific research when determining the suggestiveness and reliability of eyewitness identifications under Mason v. Brathwaite (432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)). Also, the second sentence of RCW 9A.56.190 states essential, but alternative, elements of the crime of robbery. State v. Stites (June 23, 2022)

US Supreme Court

Supreme Court Overturns NY Concealed Carry Law – Opinion and article about the opinion

Court of Appeals

PRA, Public Employees, Victims or Victim Families (original opinion withdrawn and substitute issued)  – Under the PRA public employees who are, or when their immediate family members are, victims or survivors of domestic violence, sexual assault, harassment, or stalking, have a substantive due process right to personal security and bodily integrity. This constitutional right precludes the State from disclosing their name and physical work location or work contact information when doing so presents a substantial likelihood that the employee’s physical safety or the safety of that employee’s family member would be in danger. Under RCW 42.56.540 injunctive relief is only appropriate when an individual can establish substantial and irreparable harm from disclosure of protected information. WA Federation of State Employees, et al. V. Freedom Foundation (June 13, 2022)

Court of Appeals

Parentage, Sexual Assault, and Constitutionality – A perpetrator of sexual assault is precluded from establishing or maintaining a child’s parentage under RCW 26.26A.465. A victim parent who gave birth to the child must submit a petition, and a court must find by clear, cogent, and convincing evidence that the child was born within three hundred and twenty days after the assault. Parents maintain rights to parent their child under both the US and Washington Constitutions, however, those rights are not absolute. Consequently, a perpetrator is not afforded the same due process rights of a person who is a parent to a child because of consensual sexual intercourse. The interest in maintaining the relationship between a perpetrator and a child is outweighed by the fact that the child was the result of the perpetrator’s violent act and outweighed by the strong interest in protecting the victim parent from the trauma of having to continue to interact with the perpetrator. In the Matter of Parentage of R.V. (June 7, 2022)

Superior Court Jurisdiction, Inferior Courts, and Writs – A land use dispute was filed in one county, and an appeal of that decision was filed in a separate county. The judge who heard the appeal did not believe the county had jurisdiction. A superior court’s subject matter jurisdiction to decide particular types of cases is grounded in the Washington State Constitution. Under article IV, section 6 of the state constitution, superior courts have broad jurisdiction over most original court actions. They also have appellate jurisdiction over cases from inferior courts and jurisdiction over various types of writs. Except for appeals from inferior courts and writs of habeas corpus filed by persons in custody, a superior court’s subject matter jurisdiction extends throughout Washington. Glenrose Association v. Spokane County, et al (June 7, 2022)

Parenting Sentencing Alternative, Eligibility, and Exceptional Sentence – The legislature amended RCW 9.94A.655 in 2020, to expand eligibility for the Parenting Sentencing Alternative (PSA). The new statute allows a court to order the PSA in four specific parental situations. Two of those involve being an “expectant parent,” or a parent with a “proven, established, ongoing, and substantial relationship with a minor child that existed at the time of the offense.” The defendant committed crimes before and after the statutory amendments, and while he was an expectant parent and after the birth of his daughter. After the law changed, and while awaiting sentencing, the defendant was released from jail to visit his newborn daughter. He failed to return and picked up new charges (including eluding from law enforcement). During his subsequent incarceration he continued to develop his relationship with his daughter by video conferences, telephone calls, and sending her colored drawings. With support from DOC, and DCYF, on the condition that he obtain intensive programming, the court granted him the PSA on all charges. On appeal, the court determined that four of the six counts are not eligible for the PSA. The court proposes that at resentencing the trial court may consider granting an exceptional sentence down for the counts which do not qualify for the PSA, because prior caselaw prohibiting an exceptional sentence based on the status of being a parent may not be viable after the legislative expansion of the PSA. State v. Peluso (June 6, 2022)

Blake, Offender Score, and Bail Jump – Convictions for bail jump, when the offender failed to appear at a scheduled hearing for a pending charge of Blake related possession of a controlled substance, are appropriately included in the offender score. State v. Paniagua (June 9, 2022)

Supreme Court

Race and Ethnicity, Seizure During a Temporary Detention, and GR 37 – “As provided by our precedent, the article I, section 7 seizure inquiry is an objective test in which the allegedly seized person has the burden of showing that a seizure occurred. Id. To properly apply this test, we now clarify that a person has been seized as a matter of independent state law if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate a police encounter due to law enforcement’s display of authority or use of physical force. For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against BIPOC in Washington.

“Moreover, in determining whether there has been a seizure in light of all the circumstances of the encounter, courts may take guidance from some of the circumstances specified in GR 37, in addition to case law and the contentions of the parties. For instance, “the number and types of questions posed” or requests made of the allegedly seized person, and the extent to which similar law enforcement encounters are “disproportionately associated with a race or ethnicity” may be relevant considerations, among others. GR 37(g)(i), (iv).

“Finally, in accordance with our precedent, if the person shows that there was a seizure, then the burden shifts to the State to prove that the seizure was supported by a warrant or “was justified by an exception to the warrant requirement.” Rankin, 151 Wn.2d at 695. Our opinion today is not intended to modify or clarify the warrant requirement or any of its exceptions.” State v. Sum (June 9, 2022)

Court of Appeals

Opinion withdrawn – State v. Palmer (May 24, 2022)

Animal Cruelty, Alternative Means, and Petrich Instruction – An alternative means crime requires an expression of jury unanimity as to which means the defendant used to commit the crime. However, the alternative means doctrine does not apply where a statute includes alternatives characterized as “a means within a means.” The more varied the conduct, the more likely the statute describes alternative means, rather than facets of the same criminal conduct. In this case, the defendant argued that RCW 16.52.205(2)(a) created alternate means of committing animal cruelty in the first degree. However, the specific means listed are all ways of depriving an animal of necessities of life (starving, dehydrating, suffocating, or exposing the animal to excessive heat or cold) and are not alternative means. A Petrich instruction is used to prevent confusion when the State relies on evidence of several acts which could form that basis on one count. However, the State does not need to seek a Petrich instruction where, as in this case, the State has filed a single charge per animal, based on a continuing course of conduct. State v. Shoop (June 1, 2022)

SEPA, Lead Agency, and Determination of Significance – Amended Opinion from December of 2021. The State Environmental Policy Act (SEPA) requires agencies to examine the environmental impacts of public and private projects prior to authorization. SEPA’s framework designates a lead agency for projects and such agency must conduct review of every project that may have an adverse environmental impact. A lead agency must decide whether the project requires an environmental impact statement (EIS). If the lead agency files a determination of significance (DS), it signals that the project will have a probable significant adverse environmental impact. A DS overrides prior orders and necessitates a new EIS. Here, Puyallup took over lead agency status, and when it did, it argued that all the County’s prior “reviews, decisions, permits, and approvals” were void. The court found that reliance on decisions and reviews from a prior SEPA process are logical and even required. Issuing a DS doe does not require a court to void non-SEPA related decisions, even if a court determines an EIS violates SEPA. City of Puyallup v. Pierce County (June 1, 2022)

ITA, Jurisdiction, and Right to Jury Trial – RCW 71.05.130 requires that the prosecuting attorney for the county in which an Involuntary Treatment Act (ITA) case is initiated to represent the individuals or agencies petitioning for commitment. A judge in Stevens County requested that a designated crisis responder (DCR) evaluate an individual in the Stevens County jail. The DCR filed a petition for involuntary detention in King County, as the individual was transported to Fairfax Hospital which is in King County. While the judge first asked the DCR to review the individual in Stevens County, the petition was initiated by the filing of a 14-day commitment in King County, and it was appropriate for King County to represent the facility. At the probable cause hearing, the individual asked for a jury trial, however, the right to a jury trial does not apply for a probable cause hearing under the Washington Constitution or the ITA statute. In the Matter of the Detention of W.S. (May 31, 2022)

Witness Tampering, Alternative Means, and Prosecutorial Misconduct – Article 1, section 21 of the Washington Constitution guarantees a defendant a unanimous jury verdict. An alternative means crime is proscribed criminal conduct that the State may prove in various ways. Three factors help courts to decide if something is an alternate means crime. First, a statute divided in subparts is more likely to be an alternate means crime. Second, a definition of the elements seldom creates alternate means. Third, courts consider whether each alleged alternative describes distinct acts that amount to the same crime. Witness tampering is an alternate means crime because the statute uses the disjunctive “or” to divide conduct, the alternatives amount to more than a mere definition of the crime, and each section describes a distinct way to commit the crime under RCW 9A.72.120(1)(a)-(c). In this case, the State alleged that the defendant induced the victim to testify falsely or withhold testimony, and to absent herself. When there is sufficient evidence to support each alternate means of committing a crime, express jury unanimity as to which means the defendant committed is not required. In this case, the State presented sufficient evidence of each alternative. In closing the State argued that the defendant could’ve have killed the victim by strangling her with his hands and belt. This was not appealing to the passion of jury, and not prosecutorial misconduct, given the evidence presented by the victim and a separate witness. State v. Lucas-Vicente (May 31, 2022)

Peremptory, GR 37, and Remedy for Mistaken Denial – To bring a GR 37 challenge, the party alleging violation must establish a prima facie case demonstrating that the struck juror is from cognizable racial group. The burden than shifts to the non-moving party to provide a race-neutral justification. The court than determines whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory strike.” A court evaluates the reason for the peremptory under the totality of the circumstances. In this case, defense made a motion to strike a juror, the State objected under GR 37 and the trial judge denied the peremptory strike. The court on appeal found that an objective observer could not find race as the basis for the motion to strike. When a juror is wrongly impaneled, it implicates the constitutional rights of the defendant. However, erroneous denial of peremptory is not a per se reversible error, as it merely results in the improper seating of a competent and unbiased juror. State v. Booth (May 31, 2022)

PRA, Work Product, and Litigation – Work product documents are exempt from disclosure under the Public Records Act (PRA). A document can be entitled to work product protection if it was prepared in anticipation of litigation, even if the document also served a nonlitigation purpose. Protection in such dual-purpose circumstances is not automatic. A two-step analysis applies to discerning whether a dual-purpose document qualifies for work product protection. First, a court must assess whether the document was created because of the anticipation of litigation under both a subjective and objective inquiry. Second, courts must analyze whether the document would have been prepared in substantially the same form but for the prospect of litigation. If a document genuinely was created because of litigation and would not have been created in substantially the same form but for litigation, then the document qualifies for work product protection. Denny v. City of Richland (May 31, 2022)

Supreme Court

Appeal, Interlocutory Review, and Substantially Alters the Status Quo – RAP 2.3(b) and RAP 13.5(b) dictate when discretionary review may be granted to review a trial court’s decision and a Court of Appeals interlocutory decision. RAP 2.3(b)(2) and RAP 13.5(b)(2) both use the term “substantially alters the status quo.” The court ruled that to satisfy the “substantially alter the status quo” test, a petition must provide an immediate effect outside the courtroom, meaning something that does not merely alter the status of the litigation itself. In re the Dependency of N.G. (June 2, 2022)

Legal Update for Washington Law Enforcement

May 2022

Court of Appeals

Opinion withdrawn – State v. Palmer (May 24, 2022)

ITA, 14-Day Petition, and Total Disregard – A 70 yr old woman was involuntarily committed after acting aggressively toward staff at the residential facility where she lived. The attending physician declined to sign the petition because the woman had been moved to a hospital on a single bed certification and the physician hoped to move her to a better facility and believed they had additional time before statutory deadline. By statute, an individual detained has a right to a full hearing or jury trial before they may be subjected to involuntary treatment beyond the fourteen-day inpatient treatment period. See RCW 71.05.240(6). Rather than terminating the 14-day order and advising her that she was no longer detained, the facility filed a new 14-day petition. Although dismissal is an available remedy for an involuntary treatment act violation, the court should dismiss a petition only where the petitioners totally disregarded the act’s requirements. “[D]ismissal is an available remedy where staff reinitiate involuntary commitment under a new cause number to avoid the consequences of their noncompliance with the involuntary treatment act. We further hold that, under the facts of this case, the State totally disregarded the act’s requirements.” In re Detention of E.S. (May 24, 2022)

Quiet Title, Superior Court Jurisdiction, and Railroad Easement – RCW 2.08.010 provides that superior courts “have original jurisdiction in all cases in equity, and in all cases at law which involve the title or possession of real property . . . and in all other cases in which the demand or the value of the property in controversy amounts to three hundred dollars.” Absent any law that vests exclusive jurisdiction in some other court, the superior court has jurisdiction over a quiet title action. Agency rulings support the proposition that state courts have jurisdiction over a quiet title action involving railroad easements; “[a]lthough federal preemption is broad, the Board has consistently held that disputes concerning state contract and property law should be decided by the appropriate courts with expertise in those matters, rather than by the Board[,]” City of Woodinville v. Eastside Community Rail (May 23, 2022)

Court of Appeals

Collateral Estoppel and Res Judicata, Public Policy, and Employee Wages – An aggrieved employee sued when she was not promoted and argued she was passed over due to her prior whistleblowing claim. An administrative law judge ruled she was entitled to attorney fees and reasonable costs under RCW 42.41.040. Later, she filed suit seeking additional costs under RCW 49.48.030. Mason County filed a motion for summary judgment under the theory of collateral estoppel and res judicata. The court found in favor of the aggrieved employee. It found that RCW 49.48.030 permitted a standalone suit to seek attorney fees incurred in a previous proceeding. The court relied on the strong legislative history of supporting payment of employee wages, with a specific provision allowing payment of attorney’s fees to collect those wages. Even if collateral estoppel or res judicata may prevent a suit, here the court found the public policy justified the award of fees. “Collateral estoppel should be shunned when the public interest requires that relitigation not be foreclosed.” “Washington courts do not always apply res judicata even when the proponent of application fulfills all elements of the doctrine. Courts may reject the bar when the circumstances behind the case do not serve the doctrine’s purposes.”  Reeves v. Mason County (May 17, 2022)

Felony Conviction, DNA Collection, and Law Enforcement Discretion – RCW 43.43.754 directs law enforcement agencies to collect an individual’s DNA on conviction of a qualifying offense and vests the agencies, not the court, with discretion whether to collect duplicate biological samples. State v. Booker (May 16, 2022)

Supreme Court

DNA, Juvenile Deferred Disposition, and Conviction – In a plurality opinion, RCW 43.43.754(1)(a) requires every adult or juvenile convicted of a felony or certain other crimes or juvenile offenses to provide a DNA sample. A juvenile is convicted for purposes of DNA collection, upon entry of a deferred disposition. But a juvenile is only required to provide DNA if they are convicted of one of the crimes listed in RCW 43.43.754(1)(a)(i)-(xi). State v. MYG and IAS (May 19, 2022)

Ninth Circuit Court of Appeals

Open Courts, Sixth Amendment Public Trial, and COVID – At the height of the coronavirus pandemic in 2020, a California District Court prohibited members of the public from attending the defendant’s suppression hearing and trial and rejected his request for video-streaming of the proceedings, only allowing an audio stream. The panel held that the district court’s COVID protocols violated the defendant’s Sixth Amendment right to a public trial. The panel explained that the “public trial” guaranteed by the Sixth Amendment is impaired by a rule that precludes the public from observing a trial in person, regardless of whether the public has access to a transcript or audio stream. The panel concluded that the district court’s complete prohibition on the public’s visual access was not, however, narrowly tailored. Noting that courts throughout the country, facing the same need to balance public health issues against a defendant’s public trial right, consistently developed COVID protocols that allowed some sort of visual access to trial proceedings, the panel wrote that the district court cannot show that allowing a limited number of members of the public to view the trial in the courtroom, or via a live-streamed video in a different room, would imperil public health. US v. Allen (May 16, 2022)

Court of Appeals

Confrontation Clause, Out of Court Statement, and Testimonial Statements – The 6^th Amendment to the US constitution guarantees an accused the right to confront witnesses against him. The confrontation right applies to out-of-court statements by witnesses who have not been subject to previous cross-examination. The right to confront applies only when the challenged statements are testimonial in nature. A statement is testimonial when its primary purpose is to create an out-of-court substitute for trial testimony. And the primary purpose of the encounter in which the challenged statement was made is discerned by objectively evaluating all of the pertinent circumstances, including not only the motivations of the speaker but also of other participants. In this case, the challenged out-of-court utterances of the defendant’s brothers, admitted into evidence against him at his trial, fell outside the protections of the confrontation clause and, accordingly, the trial judge properly allowed their placement before the jury. This is consistent with prior cases where courts have found that statements made unwittingly to an informant are not testimonial. State v. Ta’Afulisia (May 9, 2022)

Supreme Court

Initiative, DUI, and THC Per Se Limit – An exercise of the initiative power is an exercise of the reserved power of the people to legislate. In approving an initiative measure, the people exercise the same power of sovereignty as the Legislature does when enacting a statute. Under article I, section 1 of the Washington Constitution, “All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights.” Courts interpret this to mean that “the State Legislature may prescribe laws to promote the health, peace, safety, and general welfare of the people of Washington.” Further, “where scientific opinions conflict on a particular point, the Legislature is free to adopt the opinion it chooses, and the court will not substitute its judgment for that of the Legislature.” The court found the per se THC prong of the DUI statute constitutional and that it is a legitimate exercise of police powers as the limit is rationally and substantially related to highway safety. The research shows that the minimum 5.00 ng/mL limit to be related to recent cannabis consumption for most people, which is linked to impaired driving and highway safety, even though there is no similar scientific correlation to impairment like 0.08 percent blood alcohol concentration (BAC) limit for alcohol. Further, there is a reasonable assumption that having the limit will deter people who have recently consumed cannabis from driving, thus reasonably and substantially furthering a legitimate state interest. The statute is not vague because the 5.00 ng/ml limit does not lead to arbitrary enforcement. The statute is not facially unconstitutional because there is a circumstance under which the limit can be constitutionally applied. State v. Fraser (May 12, 2022)

Ninth Circuit Court of Appeals

Juvenile Records, Privacy, and Litigation – Plaintiffs sued the County and County social workers for allegedly violating their Fourth Amendment rights by interviewing them without a court order or parental consent during the course of a child-abuse investigation. During that investigation, the County created and maintained files related to the alleged child abuse. Attorneys defending the County reviewed the child-abuse investigation file without first obtaining a court order. The panel held that, contrary to plaintiffs’ argument, Gonzalez v. Spencer, 336 F.3d 832 (9th Cir. 2003) (per curiam), abrogated on other grounds by Filarsky v. Delia, 566 U.S. 377 (2012) does not stand for the proposition that a right to privacy necessarily attaches to the type of records at issue here. Thus, Gonzalez did not recognize a per se constitutional right in juvenile records that is always violated by third-party access. Further, even if plaintiffs were entitled to informational privacy, the balancing test recognized in Seaton v. Mayberg, 610 F.3d 530, 539 (9th Cir. 2010), showed the County’s interest in defending this litigation outweighed plaintiffs’ asserted privacy interest. Even assuming that the social workers’ records comprised sensitive medical and psychological records, there was no constitutional violation because the County’s need to access the records was high. Plaintiffs initiated that need, and the professional obligations that lawyers owe their clients minimized the risk of misuse, harassment, or embarrassment. Thus, the district court properly dismissed plaintiffs’ Monell claim. A.C. v. Cortez (May 13, 2022)

2nd Amendment, Long Guns, Semiautomatic Center Rifles, and Individuals Under 21-yr-olds – The panel affirmed in part and reversed in part the district court’s denial of plaintiffs’ motion for a preliminary injunction seeking to enjoin, under the Second Amendment, California’s bans on the sale of long guns and semiautomatic centerfire rifles to anyone under the age of 21. Jones v. Bonta (May 11, 2022)

National Security Letter, Administrative Subpoena, and Non-Disclosure – “In this case, we consider challenges to the constitutionality of the law authorizing the Federal Bureau of Investigation (FBI) to prevent a recipient of a national security letter (NSL) from disclosing the fact that it has received such a request. 18 U.S.C. § 2709(c). An NSL is an administrative subpoena issued by the FBI to a wire or electronic communication service provider which requires the provider to produce specified subscriber information that is relevant to an authorized national security investigation. Id. § 2709(a). By statute, the NSL may include a requirement that the recipient not “disclose to any person that the Federal Bureau of Investigation has sought or obtained access to information or records” under the NSL law. Id. § 2709(c)(1)(A). Both the information request and the nondisclosure requirement are subject to judicial review. Certain recipients of these NSLs claim that the nondisclosure requirement violates their First Amendment rights. We hold that the nondisclosure requirement in 18 U.S.C. § 2709(c) is a content-based restriction on speech that is subject to strict scrutiny, and that the nondisclosure requirement withstands such scrutiny. Accordingly, we affirm.” In re National Security Letter (May 11, 2022)

Court of Appeals

Special Sex Offender Sentencing Alternative (SSOSA), Revocation and Authority of the Court, Youthfulness – The defendant pled guilty to rape of a child in the first degree committed when he was 19 years old. The court imposed a SSOSA. A few years later the court revoked that sentence and imposed an indeterminate range of 120 months to life. RCW 9.94A.670(4) requires a court to impose a sentence with a minimum and a maximum range and does not give authority for a judge to suspend just a portion of the sentence. The court gives a lengthy history of cases related to juveniles and youthfulness and concludes that under the Eight Amendment of the US Constitution, and article 1, section 14 of the Washington Constitution, it is not inappropriate to sentence a 19-year-old to an indeterminate sentence. Under the facts of this case, when the defendant entered a plea deal which resulted in a SSOSA sentence, it was not unconstitutional for the court to refuse to consider the defendant’s youthfulness at the time of his crime during the subsequent revocation hearing when he violated those conditions as a 24- or 25-year-old adult. State v. Zwede (May 2, 2022)

Parenting Sentencing Alternative (PSA), Separate Report, and Timely Information – RCW 9.94A.655 requires DCYF to provide a report to the court prior to the courts granting of a PSA. The report filed by DCYF in this case was 15 months old at the time the court denied a PSA request by the defendant. The trial court abused its discretion by not seeking an updated report from DCFY. State v. Greenfield (May 2, 2022)

Offender Score, Blake Conviction, and Community Custody – The trial court properly declined to add a point to the defendant’s offender score for committing a new crime while on community custody for a Blake conviction. Community custody is a portion of an offender’s sentence of confinement and pursuant to Blake, the conviction and sentence were unconstitutional. State v. French (May 2, 2022)

Houston-Sconiers and O’Dell, Significant Change in the Law, Young Adults – The defendant pled guilty to first degree robbery while armed with a deadly weapon, and UPF 1, when he was 20 years old. More than a year after judgment, he filed a PRP challenging his sentence under State v O’Dell because the trial court did not consider youth as a mitigating factor. That was later amended to add a claim for relief based on State v. Houston-Sconiers. RCW 10.73.100 provides exceptions to a one-year time bar to filing a PRP, including when a case is determined to be a “significant change in the law.” The Supreme Court previously found Houston-Sconiers to be a significant change in the law, but it did not find O’Dell to be. Therefore, the claim relying on O’Dell was time-barred. While Houston-Sconiers was a significant change in the law, it only applies to individuals who were juveniles when they committed their crime, so the second claim also fails. Personal Restraint Petition of Young (April 26, 2022)

CrR 7.8 and Reasonable Time, Community Custody, Supervised Contact with Biological Children – The defendant was convicted of first-degree rape of his stepdaughter. Post-conviction, he sought to modify community custody conditions so he could have unsupervised contact with his infant daughter. He brought a CrR 7.8 motion, and despite being over one year from judgment, the court granted the motion. The court found it was within a “reasonable time” of the birth of his child, and that it fell within an exception under RCW 10.73.100, as “new evidence.” The court also found that his status of a biological parent required modification in the interests of justice, and that it was material in deciding whether the conditions were constitutional. State v. Hubbard (April 26, 2022)

Supreme Court

Recall Petitions, Discretionary Acts, and COVID – An elected official in Washington may be recalled for malfeasance, misfeasance, or violation of the oath of office under article 1, section 33-34 of the Washington Constitution. A court’s duty is not to evaluate whether the allegations against an elected official are true or false but to stand as a gatekeeper to ensure that elected officials are not subject to recall for frivolous reasons. If there is a legal justification for the challenged action, the petition’s charge is not legally sufficient. In cases of discretionary acts, recall charges are only sufficient if the elected official exercised their discretion in a manifestly unreasonable manner. Here, the four charges were connected to discretionary acts, and were legally and factually insufficient to support a recall. In Recall of Inslee (April 28, 2022)

Brady, Jail Records, and Jury Unanimity – The defendant alleged that the state committed a Brady violation by failing to produce medical records from the jail of a codefendant, who was the mother of the victim and a state’s witness. In order to be a Brady violation, withheld evidence must be favorable to the accused, the evidence must have been suppressed willingly or inadvertently, and prejudice ensued. In this case, where the State designated an incarcerated individual as a witness, met with her in the jail, and was aware of some of her mental health issues, the State had a duty under Brady to disclose those jail records to the defense. This conclusion does not establish a general rule or require the prosecution to turn over all jail records to the defense under all situations. The prosecution and jails do not need to expend unnecessary resources to gather all records of all incarcerated individuals, based on the possibility that an individual might testify in a trial. Ultimately, under the facts of this case, no prejudice attached. Additionally, jury unanimity is not required for every possible assault in a case like this involving abuse of a child. There were multiple assaults over a short period of time, and the State was not attempting to prove each individual assault on specific dates and times. In re Personal Restraint of Mulumba (April 28, 2022)

Sex Offender Registration, Knowingly Fail to Comply, and Totality of the Circumstances – A trial court must ensure that a defendant understands the nature of the crime and the essential elements but does not need to detail every fact that could be relevant to every element. When a defendant pleads guilty after receiving a charging document that accurately describes the elements of the offense charged, their plea is presumed to be knowing, voluntary, and intelligent. Whether a plea is knowingly, intelligently, and voluntarily made is determined by the totality of the circumstances. In this case, the defendant claimed the court failed to advise him that he “knowingly” failed to comply. However, the defendant added the word “knowingly” to the elements of the crime on his plea form. The court had an extended colloquy to ensure that he understood the charges against him, reading the elements from the plea form, and confirming that he was making the decision to plea freely and voluntarily. The facts of this case, under the totality of the circumstances, establish that the defendant’s plea was knowing, voluntary, and intelligent. State v. Snider (May 5, 2022)

Legal Update for Washington Law Enforcement

April 2022 Newsletter

Court of Appeals

Sex Crime Investigation, Race, and Prosecutorial Misconduct – Even in the absence of an objection, if a prosecutor improperly injects race into a criminal trial, a court will generally reverse the conviction. In a sexual assault trial involving a black man attempting to have sex with a detective who was pretending to be an underaged white girl, use of the term “gorilla pimp” by the State was not harmless beyond a reasonable doubt, even though it was an isolated comment, not used during closing, and not objected to. The state argued the term used was actually “guerrilla pimp,” however, both “guerrilla” and “gorilla” pimp are sex trafficking terms.* That was unpersuasive to the court, which found the analogy of a “gorilla” to be particularly concerning. “At this point in our history we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric.” In the nonpublished portion, the court finds the state provided sufficient evidence for the conviction, and a 16-month delay from arrest to trial was not a violation of speedy trial, given that defense agreed with the majority of the continuances over the defendant’s objection. State v. McKenzie  (April 21, 2022) [*Editors note: Shared Hope International provides sex trafficking definitions at this site, which include both “gorilla” and “guerrilla” pimp.]

Supreme Court

Gun Storage, City Ordinances, and State Preemption – Article 11, section 11, of the Washington Constitution provides that municipal laws must not conflict with general laws. Stated another way, constitutional general laws that state they explicitly occupy the field, that implicitly occupy the field, or that are otherwise inconsistent with local laws preempt local lawmaking. The state generally preempts local gun laws under RCW 9.41.290. A city ordinance that requires that guns be stored safely and kept out of unauthorized hands is preempted by state law. Initiative 1639 did not mandate how or where a gun must be stored. Bass v. City of Edmonds (April 21, 2022)

Court of Appeals

Citizen Initiative and Valid Signatures– Article II, section 1(a) of the Washington Constitution requires that initiative petitions “include the full text of the measure proposed,” have the required number of “valid signatures of legal voters,” and be timely filed with the Secretary. RCW 29A.72.170 requires the Secretary to accept and file a petition that satisfies article II, section 1(a). The statute further requires the Secretary to “verify and canvass” the names and signatures on the petition. Nothing in the constitution, statutes or administrative code require the Secretary to accept electronic signatures. Kim Wyman v. Gerald Hankerson (April 11, 2022)

Child Molestation, Confrontation, and COVID – The victim and her mother were both immunocompromised and ineligible for a vaccine at the time of trial. Their physician provided documentation to verify and concluded that the victim should not be out in public. Further, if the mother contracted COVID the victim would almost certainly contract it as well. The court also relied upon the Supreme Court of Washington’s order regarding court operations during COVID. The court found sufficient facts to permit remote testimony. The confrontation clause does not prohibit a witness to testify by video if a substitute procedure 1) necessarily further an important public policy and 2) is reliable. Under the safety concerns expressed by the court, gravity of the risk, and the age of the already old case, remote testimony was reasonably necessary. There were minor issues with sound, and the defendant was off the video screen during part of the testimony. However, the video allowed the jury and the defendant to see and hear the witness. The video testimony was reliable. State v. D.K. (April 6, 2022)

Jury Trial, Bailiff’s Interactions with Jurors, and Double Jeopardy (substitute opinion of the original filed January 10, 2022) – RCW 4.44.300 forbids a bailiff from communicating with the jury during its deliberations, except to inquire if they have reached a verdict. The bailiff is in a sense the “alter ego” of the judge, and improper communication between the court and the jury is an error of constitutional dimensions impacting the right to a fair and impartial jury. When a bailiff communicates with a jury, the trial court must examine the remarks for “possible prejudicial impact.” If the court determines the communication had a possible prejudicial impact, a mistrial is required. If a court precipitously discharges the jury without disclosing an adequate basis, a retrial will be denied based on double jeopardy. In this case, the trial judge provided a detailed explanation on the reasoning behind declaring a mistrial and double jeopardy does not apply. State v. Hall (April 11, 2022)

Legal Update for Washington Law Enforcement

March 2022

Court of Appeals

PRA, Public Employees, Victims or Victim Families – Under the PRA public employees who are, or when their immediate family members are, victims or survivors of domestic violence, sexual assault, harassment, or stalking, have a constitutional right which precludes the State from releasing their name and physical work location or work contact. This right applies when a release would present a substantial likelihood that the employee’s physical safety or the safety of that employee’s family would be in danger. Under RCW 42.56.540 injunctive relief is only appropriate when an individual can establish substantial and irreparable harm from disclosure of protected information. Federation of State Employees v. Freedom Foundation (March 28, 2022)

PRA, Public Employees, Triggering Event – Statutes generally apply only prospectively unless the legislature expresses a contrary intent. A newly enacted statute generally applies to all cases pending on direct appeal and not yet final. Amendments to statutes and court rules may apply to a pending appeal if the “triggering event” to the new enactment has not yet occurred. In the case of a PRA request, the triggering event is the release of records. RCW 42.56.250(8)’s recent amendments prohibit release of a public employee’s month and year of birth unless the requestor is a member of the “news media.” RCW 42.56.230(3) does not prohibit release of a birth date connected to a public employee’s name, and that does not violate an employee’s right to privacy. WA Education Association v. Dept. of Retirement Systems (March 28, 2022)

ITA, Signing a Petition, Providing Testimony – A facility staff member signed the petition for a 14-day commitment. At the hearing, a different staff member testified. The signing staff member was not present and did not testify. The individual committed appealed, arguing that the individual who signs the petition must be available and prepared to testify. RCW 71.05.010(2) provides that courts must focus on the merits of a petition unless the statutory requirements were “totally disregarded.” Here the facility complied with the spirit of the ITA and complied with RCW 71.05.230, as it does not require the individual who signs a petition to testify at the hearing. State v. C.I. (February 7, 2022)

Firearm Enhancement, Consecutive Sentences – An individual was convicted of second-degree assault with a firearm, UPF 1, and possession of a stolen firearm. The defendant unsuccessfully challenged the court’s sentence, specifically that it imposed a consecutive sentence for the firearm charges and the 36 months firearm enhancement. RCW 9.94A.533(3) provides that if a court imposes a firearm enhancement it must be added to the “total period of confinement for all offenses” not just all non-firearm convictions. State v. Barnett (March 28, 2022)

Community Custody, Crime Related Provisions, LFO – A court does not delegate authority or impose a condition that is unconstitutionally vague when it orders crime related prohibitions “per CCO.” Under RCW 9.94A.703(3)(f), the court has authority to order crime related conditions. Under RCW 9.94A.704 the Department of Corrections (DOC) has authority to set crime related and other conditions. A judge notation as in this case is merely communicating the legislative authority granted to DOC. The notation is not unconstitutionally vague because the discretion is defined in statute. However, because the defendant’s J&S already included this language in the boilerplate language, it was possibly confusing, redundant, and unnecessary. The court ordered all non-discretionary LFO’s waived, and because supervision fees, placement costs, and collection costs can be waived, they are discretionary and should have been waived. State v. Ortega (March 29, 2022)

ITA, Assault 3, Registered Nurse – Under RCW 71.05.280(3) a person can be committed for 180 days for involuntary treatment if they committed acts constituting a felony, a court finds the individual incompetent, criminal charges are dismissed, and the individual presents a substantial likelihood of repeating similar acts because of the mental disorder. While receiving treatment in an adult psych unit, an individual repeatedly struck a nurse in the head and the nurse lost consciousness. During the ITA hearing the nurse testified she was a registered nurse, but the State did not provide a copy of her license. The individual challenged the involuntary treatment by arguing that the nurse was not a registered nurse. The court found that the nurse was a registered nurse because she testified that she was, and under RCW 18.79.030(1) it is unlawful to practice as an RN without being licensed. Therefore, trial court correctly determined that the individual committed assault three by assaulting a nurse while working. In re the detention of L.N. (March 29, 2022)

Gifts of Public Funds, County Commissioners, Official Bonds – When commissioners act individually, they cannot bind a board of county commissioners to a contract or to conduct business. Conversely, when individual commissioners make legislative decisions as a governing body, their decisions are immune from civil liability, outside of tortious conduct. Here, commissioners approved of the homeless fund expenditures during a regular public meeting, by legislative vote, and even if unconstitutional, the act did not constitute acts taken in their personal capacities, and the vote cannot make them liable under the terms of their official bonds. Stevens County ex rel. Tim Rasmussen v. Travelers Surety & Casualty Co, et al (March 31, 2022)

Ineffective Assistance, Batson and Gender Discrimination, Burden to Prove Self-Defense, and Prosecutorial Misconduct – During jury selection the state used six of its seven peremptory challenges to remove female jurors. It was not ineffective for defense to fail to argue that Batson, GR 37, and other cases should be expanded to include gender bias. In addition, the State’s gender-neutral reasons for the peremptory challenges were supported by the record.

Regarding self-defense, this court acknowledged that there was a conflict between State v. Ackerman and State v. Brightman. The court declined to follow Ackerman and concluded “that the unmodified WPIC instructions in this case (WPIC 16.02, 16.03, 16.07) accurately reflected the law on self-defense.”

The state’s use of an in-life photo in a trial where there are a multitude of autopsy and gruesome crime scene photos to counterbalance the death images rests in the discretion of the trial court. In-life photos are relevant to establish identity of the victim but will still be subject to an analysis for unfair prejudice. In this case, admission of a picture of the victim with her small child 10 years before the crime was not unduly prejudicial during trial. The State also used the picture in closing as part of a PowerPoint, superimposing on the photo the name of the victim and “murdered.” “In this case, we do not condone the use of caption on photographic evidence during closing. However, the trial court noted that the photograph was briefly displayed and not otherwise mentioned in closing. Any error was fleeting as opposed to pervasive and prejudicial.” Defense did not object but after the State’s initial closing argument asked for a mistrial. Defense did not seek a curative instruction. A defendant’s failure to object waives the error, and “we will reverse for prosecutorial misconduct during closing only if ‘the remark is so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.’” State v. Brown (March 31, 2022)

First Time Offender, Community Custody – If a court sentences an individual to a first-time offender waiver, community custody cannot exceed 6 months unless treatment is ordered. In this case, the court ordered 12 months of community custody without imposing treatment. While RCW 9.94A.702 permits a court to impose up to 12 months of community custody for a non-first-time offender, RCW 9.94A.650 controls for a first-time offender. In the Matter of the Postsentence Review: Rodriguez (March 31, 2022)

Supreme Court

Sex Sting Operations, Entrapment, Lack of Criminal History – The burden of proof to obtain an entrapment defense include the burden of production (issues of fact for the fact finder) and the burden of persuasion (the fact finder’s degree of certainty). “We take the opportunity to clarify that regardless of the terms used, the quantum of proof justifying an instruction on a party’s theory of the case is some evidence supporting the proposition.” In short, the burden of production requires defendants to present some evidence on the elements of the defense and the burden of persuasion requires defendants to affirmatively establish those elements based on the facts presented. Additionally, the court found that in the proper case, a defendant’s lack of criminal history may be admitted under ER 404(a)(1). In a footnote, the justices also suggest that ER 608 may provide for another avenue for admitting evidence of a lack of criminal history, without deciding that question. The dissent agrees with much of the analysis but would find the trial court properly denied the request for an entrapment instruction because there was “no evidentiary support for the entrapment instruction.”  State v. Arbogast (March 31, 2022)

Racially Restrictive Covenants, Public Records, Eliminating Covenants from Title – In 2021, the legislature amended RCW 49.60.227 through HB 1335 (2021). “We believe that the legislature’s intent is clear and that the amendments provide a remedy that strikes the balance between keeping a historical record of racism in covenants, while also allowing homeowners to remove the repugnant covenants from their chains of title. Removing all trace of these discriminatory covenants would not effectuate the legislature’s intent to eradicate discrimination. It would destroy only the physical evidence that this discrimination ever existed. It would be all too easy for future generations to look back at these property records with no physical evidence of the discriminatory covenants and conclude that the covenants never existed at all.” In re That Portion of Lots 1 & 2 (March 31, 2022)

Court of Appeals

Community Custody Conditions – To comply with due process, a trial court’s community custody condition must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is proscribed and provide ascertainable standards of guilt to protect against arbitrary enforcement. The imposition of conditions which prohibit “sexual communication” after the defendant was convicted of sending messages about wanting to have sex with an underage female was not unconstitutionally vague. “Romantic relationship” on the other hand is unconstitutionally vague (see State v. Peters, 10 Wn. App. 2d 574, 591, 455 P.3d 141 (2019)).

The ISRB can also impose community custody conditions to assure that it is more likely than not that an individual released will not reengage in a sex offense. The Board may not impose conditions that are contrary to those ordered by the court or DOC. Under the facts of this case the ISRB conditions related to drug monitoring, internet monitoring, prohibiting sexually explicit material, dating and sexual relationships, and overnight visits in residences with minor children were appropriate. State v. Frederick and In Re Frederick (March 15, 2022)

Paradigm Shift, Newly Discovered Evidence, and Shaking Baby Syndrome – Paradigm shift is not a term of art that appears in the newly discovered evidence rule under RCW 10.73.100. Rather than using paradigm shift, the court focused on whether it was newly discovered evidence that could have been discovered pretrial and whether that evidence would have likely changed the result of trial. Given the evidence at trial in 2007, there has not been a major shift in the medical community’s understanding of specific issues related to injuries or diagnosis in this case related to shaken baby syndrome. In re the Personal Restraint Petition of Reyes (March 15, 2022)

Confrontation, Video Testimony, COVID – A defendant has a right to have witnesses present in the courtroom. However, that right can be overcome if it is necessary to further an important public policy and the reliability of the testimony can be assured. Necessary means “more than merely convenient but less than absolute physical necessity.” Here, the trial court made sufficient findings to support allowing two out of state witnesses to testify by video when they had health related concerns about contracting COVID-19, in the pre-vaccination world, if forced to travel to Washington. State v. Milko (March 15, 2022)

Supreme Court

Information and Essential Elements – The essential elements rule establishes that, to be constitutionally adequate, a charging document must contain all essential elements of the charged crime. Essential elements are those elements of a crime necessary to establish the very illegality of the behavior charged. Premeditation is not an essential element that must be included in a charging document for first degree murder. In the present case the State’s information was constitutionally sufficient. State v. Canela (March 17, 2022)

Juvenile Right to Counsel – RCW 13.40.140 provides a juvenile with the statutory right to counsel at all critical stages of the proceedings unless the juvenile waives that right. The right to counsel attaches to any proceeding in which the juvenile faces the danger of confinement. In this case, during one of many revocation hearings, the 13 yr. old juvenile appeared without her attorney and the juvenile court revoked part of a suspended sentence. The Supreme Court finds that the juvenile court failed to advise her of her right to counsel, her silence did not waive that right, and proceeding in that manner violated her right to counsel at that hearing. State v. M.N.H. (March 17, 2022)

Court of Appeals

Restitution, Vacation and Sick Leave –When a court orders restitution under 9.94A.753, it “shall be based on easily ascertainable damages for injury to or loss of property, actual expenses incurred for treatment for injury to persons, and lost wages from injury.” A victim who suffers an injury, misses work due to that injury, and uses sick leave or vacation to cover that loss may receive restitution. But it is not for loss of wages, but because vacation and sick leave are technically “property” under the statute. State v. Long (March 7, 2022)

PRP, Houston-Sconiers, and Per Se-Prejudice – In 2013 a judge sentenced a 16-year-old Black girl who with her boyfriend, killed her father’s ex-girlfriend. At sentencing, defense made mention of her age and possible lack of maturity, including her father’s invitation to commit the crime, her prior violent history which involved adults involving her in the crime. The State and Defense negotiated an amended plea based on her willingness to cooperate, testify, and plead guilty. The court rejected the plea agreement and sentenced her to more than the agreed recommendation. A few years later Houston-Sconiers was decided. The court granted the PRP and ordered a new resentencing because the sentencing court failed to meaningfully consider the defendant’s youth, and it believed more likely than not the defendant would have received a lesser sentence had the court complied with Houston-Sconiers. The court also rejected a request to apply a “per se prejudice” to juvenile resentencing for certain groups of children, in this case Black girls. Personal Restraint Petition of Miller (March 8, 2022)

Disingenuous PRA Litigant – While sympathetic to the County, the court declined to allow discovery to seek out the intent of a PRA requestor. In 2011, the Legislature amended RCW 42.56.550(4) to lower the possible award from five dollars to zero dollars at the same time it made it more difficult for incarcerated PRA litigants to obtain penalty awards. While the legislature’s bill report summarizes public testimony indicating that this would address “disingenuous use of PRA for personal gain,” that language does not appear in the intent language of the bill. The Supreme Court has never recognized the relevance of a PRA’s request’s motivation, and the legislature failed to provide a fix for that problem in 2011. Hood v. Columbia County (March 8, 2022)

Supreme Court

“Lustful Disposition,” 404(b), Closing Statement and Prosecutor Misconduct – The court disapproves of the term “lustful disposition.” However, the court’s rejection of that label does not modify the established doctrine of allowing evidence of other crimes, wrongs, or acts to be admitted as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident pursuant to ER 404(b). The court found the closing argument to be misconduct when the State instructed the jury that its job was “to determine who is lying.” The jury’s job is to determine whether the State has proved the offense beyond a reasonable doubt, not whether someone is telling the truth. It was non-reversible error in this case because a curative instruction could have resolved any prejudice. State v. Crossguns (March 10, 2022)

Legal Update for Washington State Law Enforcement

February 2022

Court of Appeals

ISRB, PRP, and Statute of Limitations – After a decision by the ISRB, an individual has two years to file a PRP pursuant to RCW 4.16.130. No other statute or court rule applies to this situation, and it is consistent with In re Pers. Restraint of Heck, 14 Wn. App. 2d 335, 470 P.3d 539 (2020). Personal Restraint Petition of Donald Betts (February 28, 2022)

Persistent Offenders, Juvenile Adjudications, and Equal Protection. The defendant committed his first strike offense at age 17, and later committed and was convicted of two separate strike offenses as an adult. The Eighth Amendment to the US Constitution and article 1, section 14 of the Washington State Constitution, which prohibit mandatory life without parole for juveniles, do not prohibit a life sentence here. The defendant’s first strike offense, while committed at age 17, was tried in adult court. Further, he was not a juvenile when he committed his second and third strike offenses. The Persistent Offender Accountability Act does not violate the Fourteenth Amendment or article 1, sec 12’s equal protection clause when it requires the State to prove prior strike offenses to a judge by a preponderance of the evidence rather than to a jury as an element of the crime. State v. Reynolds (February 28, 2022)

Supreme Court

Open View Doctrine, Plain View Doctrine, and Right to Conflict Free Counsel – The open view and plain view doctrine are similar because they both permit police to affect a warrantless seizure if it is immediately apparent that the object police seize is associated with a crime. Open views occur when an observation is made from a nonconstitutionally protected area, while plain views occur in a constitutionally protected area. The open view doctrine applies when the evidentiary value of the object is immediately apparent (not necessarily certain), and the identity of the object must be unambiguous. To be unambiguous, an officer must be able to determine what the object is with certainty, without manipulating the object and only using their senses.

The right to counsel in a criminal case does not include the right to have an attorney raise every issue the defendant wants. Generally, the client decides the goals and the attorney decides the means. To establish a conflict of interest under the Sixth Amendment a defendant must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. The court rejected the defendant’s requested language, that a “lawyer abandons his client when he refuses to make a potentially meritorious key motion that is consistent with defense objectives and request by the client.”  State v. Elwell (March 3, 2022)

Infraction Fines, Standing, and Declaratory or Injunctive Relief – This case involves procedural questions that may arise when a person seeks relief from a municipal court judgment imposing a traffic infraction fine. Mr. Williams received a traffic infraction which he paid. A few years later he filed a class action suit seeking a refund and injunctive relief because he believed the safety camera was incorrectly positioned. The court rejected his claim. In accordance with court rules, statutes, and case law, an individual must seek refund of the fine from the jurisdiction that issued it before they have standing to seek declaratory or injunctive relief. Williams v. City of Spokane (March 3, 2022)

Court of Appeals

Hearsay Evidence for a Nonhearsay Purpose – The State charged the defendant with arson for burning a vehicle on his father’s property. The defendant challenged the courts admission of a hearsay statement that officers were dispatched to a gas station for a “domestic dispute” involving the defendant and his father. Officers did not find the defendant or his father at the gas station but found the defendant walking home with paper cups of gasoline. A short time later, neighbors of the defendant called to report a car at the defendant’s father’s property was on fire. The defendant testified at trial that the car was his even though he was not the registered owner. On appeal, the State relied on State v. Iverson, for the proposition that nonhearsay statements were relevant to explain why officers continued investigating. The court on appeal questioned the rationale of Iverson, and now believes the nonhearsay evidence should have been irrelevant. Therefore, as applied to this appeal, the court found that the hearsay statement was inadmissible. Without the evidence that officers were dispatched for a domestic dispute, there was insufficient evidence to infer malice. State v. Rocha (February 22, 2022)

District Court Commissioners and Trial – RCW 3.42.020 provides a district court commissioner the same power and authority as a district court judge but prohibits a commissioner from presiding over a criminal or civil trial “unless agreed to by all parties.” In this case, counsel for the defendant agreed to allowing trial by commissioner. Nothing suggests the defendant ever revoked the authority of her attorney, and therefore all parties agreed on the record. City of Vancouver v. Boldt (February 22, 2022)

Interrogation and Opinion Testimony, Subpoena Request under CrR 4.7, and Sentencing – During a sexual assault investigation, detectives interviewed the suspect after he admitted to some sexual abuse of his daughter. The detectives asked if his daughter was lying about additional abuse. The court allowed the State to play the full interrogation to the jury. Defendant challenged the admission of the detective’s testimony as opinion testimony. The court ruled it is not opinion testimony when an officer gives direct testimony repeating statements accusing a witness of lying when the testimony provides context for the interrogation.

Pretrial, the defense sought a subpoena to order the wife of the defendant to allow a defense investigator to come to her home to take additional photos where alleged abuse occurred. The State had already provided photos in discovery, and additional phots as part of a specific discovery request. The trial court’s rejection of the subpoena appropriate under CrR 4.7(e), the evidence would be cumulative of other photos provided and the area in the home no longer looked the same after it had been rearranged and redecorated.

Last, when sentencing for a criminal offense, the date of offense controls disposition. When a crime could occur under two versions of the SRA, as here with a range of dates and criminal conduct, the court must sentence the individual to the lesser of the two possible sentences. State v. Putman (February 22, 2022)

Governor’s Emergency Power and Eviction Moratoriums – The governor issued various proclamations that placed or extended a moratorium on evictions, with few exceptions. The court rejected that the petitioner’s argument that the cause of action originates in Lewis County. Even though the landlords’ rental property and harm occur in Lewis County, the governor issued the proclamation in Thurston County. Thurston is the only appropriate venue under RCW 4.12.020 and Johnson v. Inslee, 198 Wn.2d 492, 496 P.3d 1191 (2021).

Under RCW 43.06.220, the governor has broad emergency powers. The proclamation prohibited certain activities which in effect delayed the ability of landlords to exercise the statutory remedy of eviction, however, the proclamation did not suspend the statute.

The court also found that the proclamations did not violate:

• Article 2 section 1 of the Washington Constitution because it was not an act of legislation to prohibit specific activities to “preserve and maintain life, health, property or the public peace.” RCW 43.06.220(1)(h).
• The right of access to the courts because it regulated but did not completely extinguish the landlords’ ability to bring an eviction, and the State’s purpose was significant and important (preventing the spread and transmission of COVID-19).
• The prohibition against a taking of their property without compensation because it merely operated to regulate the relationship between landlord and tenant.
• The impairment of a contractual relationship under article 1 section 10 of the United States Constitution. It did not extinguish the contractual obligation to pay rent, landlords have an expectation that the rental housing industry has been heavily regulated, and the moratorium temporarily delayed the exercise of available remedies. Gene & Susan Gonzales, et al., v. Jay Inslee and State of Wa (February 23, 2022)

Supreme Court

Wrongful Death Beneficiary and Retroactive Legislation – The estate for an individual who died in the Dupont train derailment in 2017 settled claims with Amtrak in 2018. The settlement included a waiver of any additional claims. In 2019 the Washington Legislature amended RCW 4.20.020, the wrongful death beneficiary statute, to expand eligibility and make the changes retroactive. Amtrak sought to block additional family claims for the decedent. A court presumes a statute run prospectively, but the legislature intended this statute to apply retroactively based on the plain language and the legislative history. The legislature did not violate the article 1 section 3 (due process) and section 23 (contract) of the Washington Constitution. The estate could not waive a right before it existed, and Amtrak also did not have a vested right to prevent the legislature from making retroactive changes. Kellogg v. Nat’l R.R. Passenger Corp (February 24, 2022)

Supreme Court

Animal Cruelty, Aggravating Circumstances, and Domestic Violence – The Defendant brutally assaulted his girlfriend’s dog in front of a bystander. The State charged him with animal cruelty as a domestic violence crime, with an aggravator for destructive and foreseeable impact on a person other than the victim. The court affirmed that animal cruelty can be appropriately charged as a domestic violence crime, even though is it not specifically listed under RCW 10.99.020. Additionally, while a pet is not a victim under some definitions of domestic violence, the Defendant’s girlfriend was a victim under RCW 10.99.020(4). RCW 10.99.020(4) provides that a victim is “any person who sustained emotional, psychological, physical, or financial injury.”  The girlfriend’s testimony suggested “psychological abuse, which was a part of a larger pattern of assaultive, coercive, and controlling behavior, occurred.” The aggravator was appropriate when the bystander witnessed the Defendant beating the dog, suffered emotional and psychological trauma, and was a person other than the girlfriend. State v. Abdi-Issa (February 17, 2022)

Court of Appeals

PRP, Significant Change in Law, and “To Convict” Instructions – The petitioner argues that State v. Allen, 192 Wn.2d 526, 431 P.3d 117 (2018), was a significant change in the law, was material to his conviction, and should be applied retroactively. In Allen, the State alleged aggravating factors, and though the jury convicted the defendant of the underlying crime, it acquitted on the aggravating factors. The case was subsequently overturned. Upon retrial the court barred the State from retrying the aggravators because they were “elements of a crime” for purposes of double jeopardy. Petitioner in this matter challenged his jury instructions because the “to convict” language did not include the aggravators from the special verdict form, therefore he argued, if failed to contain all the elements of the crime. The court rejected that argument, the State included all the essential elements of the underlying crime in the “to convict” instruction and the WA Supreme Court has long supported separate instructions for the “to convict” and aggravating factors. In re Personal Restraint of Fernandez (February 8, 2022)

Supreme Court

Judicial Conduct, Impartiality, and Prestige of Office – The Commission on Judicial Conduct sanctioned a judge for participating in an ad campaign to increase enrollment for North Seattle Community College. His picture appeared on bus advertisements for a few weeks, in which it stated that he got into law “in part to advocate for marginalized communities.”  The Commission found he violated the Code of Judicial Conduct (CJC) 1.2 and 1.3. CJC 1.2 prohibits impartiality and the appearance of impropriety, and CJTC 1.3 prohibits abuse of prestige of the judicial office to advance the economic interests of others. The Supreme Court overruled the Commission. It found that the phrase in his ad explained why he wanted to become an attorney, not that he lacks an open mind in considering issues before him. It also found that he did not abuse his position, as he used his prestige to encourage education. In re Keenan (February 10, 2022)

Recall Petitions, Conflicts, and Screening Attorneys – Washington voters have a constitutional right to recall a nonjudicial elected official who has committed some malfeasance in office, but that right is limited. The charges here were either insufficient to proceed or barred by res judicata. The petitioner also claimed the Snohomish County Prosecutor’s office had a conflict where they both formulated a ballot synopsis of the recall and defended the elected official who was subject to the recall petition. The Court, citing favorably to earlier Attorney General Opinions and a prior case involving the Attorney General’s Office, found that it is not a conflict to serve both functions. When an effective screening mechanism exists, “it is acceptable for different attorneys within the same public office to represent different clients with potentially conflicting interests.” In re Recall of Fortney (February 10, 2022)

Washington Legal Update

January 2022 Update 

2021 Subject Matter Index for Legal Update 

Court of Appeals

ITA and Total Disregard – “When construing the requirements of this chapter the court must focus on the merits of the petition, except where requirements have been totally disregarded…” RCW 71.05.010(2). A facility did not totally disregard the ITA statute when it held an individual beyond 72 hours. The individual initially agreed to stay voluntarily but when he later changed his mind, he was not safe to release, and the facility brought in a DCR as soon as possible to reevaluate him. The courts failure to advise the individual he would lose his firearm rights was not sufficient to raise for the first time on appeal. While it was a constitutional error, it was not manifest when the individual knew he would lose his firearm rights through other information, and there was nothing to suggest he stayed voluntarily because the court failed to advise him of that right. In re detention of D.H.(February 1, 2022)

Supreme Court

Right to Present a Defense – The 6^th Amendment of the US Constitution and art I, section 22 of the Washington Constitution guarantees a criminal defendant the right to present a defense. In this case, the defendant sought to admit a toxicology report which showed the deceased victim was high on methamphetamine at the time he shot and killed him. The judge did not abuse its discretion in excluding the report when an expert offered by the State to testify on the effects of the drug in the victim’s system would have been inadmissible and the court allowed the defendant to testify that he believed the victim was high on meth. The court distinguished between evidence which bolsters credibility and evidence that is necessary to present a defense. State v. Jennings (February 3, 2022)

Court of Appeals

Right to Counsel and Postconviction Hearings – The Sixth Amendment and article 1, section 22 of the Washington State Constitution guarantee defendants the right to effective assistance of counsel in a criminal prosecution. A postconviction revocation, including a parole revocation, is administrative and not criminal. A parolee may have a right to counsel under the Fourteenth Amendment and article 1, section 3 of the Washington Constitution to protect procedural due process. However, a claim of ineffective assistance under the Sixth Amendment does not apply. Personal Restraint Petition of McMurtry (January 24, 2022)

Interpreters and Official Court Records – Equal protection, due process, effective assistance of counsel, and the right to appeal do not require a court to make an audible recording during trial of all statements made to and from an interpreter. A criminal defendant has a right to a “competent” interpreter. And the standard for competence should relate to whether the rights of non-English speakers are protected, rather than whether the interpreting “is or is not egregiously poor.” If the defendant’s ability to understand the proceedings and communicate with counsel is unimpaired, the appropriate use of interpreters in the court room is a matter within the discretion of the [trial] court. Personal Restraint Petition of Hach Pheth (January 19, 2022)

Supreme Court

Unfunded Mandates and Ballot Boxes – Two statutes provide different funding responses to the legislative requirement to install ballot boxes. RCW 29A.04.430, a statute specific to funding election costs, requires the state and the county to each pay proportionate costs for election expenses. RCW 43.135.060 applies more generally requiring the State to fully reimburse counties for new or increased programing. In statutory construction a general statutory provision must yield to a more specific statutory provision. Therefore, counties are entitled to proportional reimbursement rather than full reimbursement. RCW 29A.04.430’s passage and retroactive application, after the expenses incurred by the counties, created merely an “expectation” of payment by the unfunded mandate, not a vested right. Wash. State Ass’n of Counties v. State (January 27, 2022)

Bail Jump and Aggrieved Party Status – The opinion affirms the convictions for bail jump and provides clarification on to-convict instructions. The majority (in footnote 10) and concurrence opinion discuss what “aggrieved party” status means under RAP 3.1.  The majority provides the following in the footnote. “Only “aggrieved” parties may appeal under RAP 3.1, and parties generally are not considered “aggrieved” by a favorable decision…However, appeals are permissible “to correct errors injuriously affecting the appellant” … Because the Court of Appeals has imposed on the State an improper burden to prove an element that did not exist in the 2001 bail jumping statute, as discussed infra, the State is “aggrieved” within the meaning of RAP 3.1.”  State v. Bergstrom (January 27, 2022)

Court of Appeals

Reconstruction of Trial Record on Appeal – When a full verbatim transcript is not available, courts rely on “a record of sufficient completeness” which does not equate with a complete verbatim transcript. In Washington, RAP 9.3 or 9.4 guide parties to give a “fair and accurate” nonverbatim summary of testimony and events. If affidavits are unable to produce a record which satisfactorily recounts the events material to the issues on appeal, the appellate court must order a new trial. State v. Waits (January 20, 2022)

Sex Trafficking – “[S]ex traffickers select victims who demonstrate vulnerabilities including homelessness, substance abuse, mental health issues, and histories of physical, emotional or sexual abuse. A typical trafficker recruits victims by telling them that he loves them, promising them a better life, providing them with shelter and drugs, and lying to them about the nature of the job. . ..[T]raffickers control their victims through physical violence, sexual violence, psychological violence and grooming. Traffickers . . . groom victims with promises and compliments, but escalate to physical abuse, sexual assault and death threats. . .. They also use psychological violence such as tearing a victim down, telling them they are worthless, socially isolating them, and controlling them financially and by taking advantage of a victim’s drug dependency. . .. [V]ictims often stay with their traffickers—or leave and then return—because they believe they have nowhere to go; that there is no one else out there for them, and no other options for them; they feel ashamed and guilty and stigmatized, thinking that they will not be accepted elsewhere. They are also afraid that if they leave, the trafficker will find them and harm them even more egregiously.” Testimony of Sharon Cooper in United States v. Carson, 870 F.3d 584, 590-91 (7th Cir. 2017).

Appellant Lars Braun appeals his convictions, after a bench trial, for human trafficking and promoting prostitution. Because overwhelming evidence supports a finding that his victim engaged in prostitution as the result of Braun’s manipulation, we affirm both convictions. We also reject Braun’s contention that the trial court violated the appearance of fairness doctrine. We grant Braun’s request for resentencing because his offender score included an earlier conviction for possessing a controlled substance. State v. Braun (January 20, 2022)

US Supreme Court

Court rejects “door opening” as a 6^th amendment confrontation-clause exception case.  (Consistent with WA cases, State v. Rushworth, 12 Wn. App. 2d 466, 472-77 (2020) and State v. Lang, 12 Wn. App. 2d 481, 487-490 (2020))

Court of Appeals

Bailiff’s Interactions with a Jury – The bailiff is in a sense the “alter-ego” of the judge, and improper communication between the court and the jury is an error of constitutional dimensions impacting the right to a fair and impartial jury.  State v. Hall (January 10, 2022)

Supreme Court

ISRB and Presumption of Release for Juvenile Parole – RCW 9.94A.730(3) requires the ISRB to begin with a presumption of release, and further requires the ISRB to seriously consider evidence of rehabilitation and risk-mitigating factors as they related to its decision regarding public safety.  In re Pers. Restraint of Dodge (January 13, 2022)

Legal Update for Washington State Law Enforcement

December 2021 

Court of Appeals

True Threat – A person who drove slowly by a police officer and yelled “F*** the police” and pointed an object or his finger like a gun at the officer, did not make a true threat. The court reasoned, “Johnson did not stop or approach Officer Zerr, but instead continued driving north throughout the interaction. Furthermore, Johnson kept his arm hanging out of the window of the car as he continued to drive, and then immediately stopped at a red light. These facts are more suggestive of a casual encounter or idle talk than a serious threat.”  City of Seattle v. Buford-Johnson December 27, 2021

Manifest Injustice – The State did not seek a manifest injustice in its information or plead any aggravating factor. Post-trial the State sought a manifest injustice based on recent criminal history. “[A] juvenile should have full access to information about the potential for an upward departure at disposition regardless of the juvenile’s ultimate plea decision.”  State v. J.A.V. December 23, 2021

ITA – The fifth amendment right to remain silent does not apply in an involuntary commitment hearing. In Re the detention of J.M. January 4, 2022