Case Law

WEEKLY ROUNDUP FOR MAY 13, 2022

Court of Appeals

Confrontation Clause, Out of Court Statement, and Testimonial Statements – The 6th 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)

WEEKLY ROUNDUP FOR APRIL 25 - MAY 6, 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

WEEKLY ROUNDUP FOR APRIL 22, 2022

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)

WEEKLY ROUNDUP FOR APRIL 15, 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

WEEKLY ROUNDUP FOR APRIL 1, 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)

WEEKLY ROUNDUP FOR MARCH 14-25, 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)

WEEKLY ROUNDUP FOR MARCH 11, 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

 

WEEKLY ROUNDUP FOR MARCH 4, 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)

WEEKLY ROUNDUP FOR FEBRUARY 25, 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)

WEEKLY ROUNDUP FOR FEBRUARY 18, 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)

WEEKLY ROUNDUP FOR FEBRUARY 11, 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 

WEEKLY ROUNDUP FOR FEBRUARY 4, 2022

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 6th 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)

WEEKLY ROUNDUP FOR JANUARY 28, 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)

WEEKLY ROUNDUP FOR JANUARY 21, 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 6th 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))

WEEKLY ROUNDUP FOR JANUARY 14, 2022

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 

WEEKLY ROUNDUP FOR DECEMBER 18, 2021 - JANUARY 7, 2022

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