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WEEKLY ROUNDUP FOR THE WEEKS OF JUNE 10-14, 2024

Washington Supreme Court:

Shackling – A defendant who appears in an in-courtroom holding cell in a courtroom located in a jail is restrained, equivalent to shackling.  Defendants may not be so restrained without an individualized inquiry into the necessity of such a restraint, even for a non-trial hearing when no jury is present.  State v. Luthi, No. No. 101828-2 (June 13, 2024).

Division II:

Harassment – Washington’s harassment statute, RCW 9A.46.020, is not facially unconstitutional under Counterman v. Colorado, ___ U.S. ___, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023).  Counterman altered the definition of a “true threat,” and did not invalidate the language of the statute.  State v. Calloway, No. 57226-5-II (June 11, 2024).

(Editor’s note: The opinion mentions, but does not explicitly endorse, WPIC 2.24, the definition of “threat,” which was revised in 2023 in light of Counterman.)

WEEKLY ROUNDUP FOR THE WEEKS OF MAY 20-24, 2024

Washington Supreme Court:

Youthful offenders – Sentencing courts have the authority to impose determinate sentences for aggravated first degree murder for young adults (18 – 20-year-olds) whose crimes were mitigated by the qualities of youth. However, courts may not impose terms of community custody as part of the sentence if community custody is not otherwise authorized by statute.  State v. Carter, No. 101777-4 (May 23, 2024).

Sentencing – An appellate court’s grant of a Personal Restraint Petition and ordering resentencing vacates the judgment & sentence without further order of the trial court.  Therefore, when a PRP orders a resentencing, the resentencing may be as to all counts.  State v. Carter, No. 101777-4 (May 23, 2024).

Sentencing – Sentencing courts may properly consider the post-sentencing actions a defendant takes toward self-improvement at a resentencing hearing.  State v. Carter, No. 101777-4 (May 23, 2024).

 

Division I:

Pro se representation – Defendants have a constitutional right to proceed pro se, and a right to sufficient resources to prepare and present a meaningful defense. There is no constitutional right to standby council. However, a court’s blanket policy of refusing all requests for standby counsel without considering whether it is a resource the Defendant requires to present a meaningful defense is an abuse of discretion.  State v. Gwin, No. No. 84297-8-I (May 20, 2024).

Right to counsel – “Conflicts of interest” and “irreconcilable conflicts” are separate concepts that require different analyses.  The right to “conflict-free counsel” is the right to counsel who has no conflicts of interest.  Having an “irreconcilable conflict” with counsel means a complete breakdown in communication, and does not implicate the right to “conflict free counsel.”  To obtain a reversal based on an irreconcilable conflict and a denial of a substitution of counsel, a defendant must show the conflict implicated the reliability on the trial process.  State v. Holmes, No. 84127-1-I (May 20, 2024).

 

Foreign case of interest:

Pro se litigants – Repeated pleasant and respectful pretrial assertions of judicially-rejected sovereign citizen theories and defenses, without physically disruptive conduct, is insufficient to revoke a pro se defendant’s right to self-representation.  United States v. Willis, No. 23-1547 (8th Cir. May 13, 2024).

WEEKLY ROUNDUP FOR THE WEEKS OF MAY 13-17, 2024

Washington Supreme Court:

Indian lawState v. Wallahee, 143 Wash. 117 (1927) is longer good law.  The Court grants a motion to intervene, recalls the mandate, and vacates the 1924 conviction for unlawful hunting off tribal land.  The dissent argues that the moving party lacks standing.  State v. Wallahee, No. 20439-0 (May 16, 2024).

Division I:

Sentences – No federal or Washington authority prohibits a sentencing court from imposing a standard range sentence on a defendant with an intellectual disability.  State v. Schultz, No. 84570-5-I (May 13, 2024).

Restitution – There is no sixth amendment right to a jury trial on the issue of restitution.  State v. Schultz, No. 84570-5-I (May 13, 2024).

9th Circuit:

Second amendment – Permanently barring non-violent felons from possessing firearms is inconsistent with the Nation’s historical tradition of firearm regulation.  18 U.S.C.§ 922(g)(1) is unconstitutional as applied to felons convicted only of non-violent crimes.  United States v. Duarte, No. 22-50048 (May 9, 2024).

(Editor’s note: You may see challenges to UPOF 2nd Degree charges based on this case.  Note that Ninth Circuit decisions are not binding on Washington state courts.  See e.g. Home Ins. Co. v. N. P. R. Co., 18 Wn.2d 798, 140 P.2d 507 (1943).)

Foreign case of interest:

Due process – A defendant whose attempts to file an appeal are thwarted by 1) his attorney’s failure to file an appeal when requested, and 2) executive and judicial action by a state, which delays the defendant’s own attempts at obtaining a trial transcript until the court reporter’s notes are destroyed, may be entitled to a new trial.  Pope v. Taylor, No. 23-2894 (7th Cir., May 6, 2024).

 

WEEKLY ROUNDUP FOR THE WEEKS OF APRIL 22-29, 2024

Division I:

Collateral attack time limit – The entry of a new or amended judgment & sentence following a collateral attack does not restart the one-year time limitation on collateral attacks in RCW 10.73.090.  PRP of Kozol, No. 84098-3 (April 1, 2024, Motion to Publish granted April 22, 2024).

DOSA – The only sanction available for an offender whose residential DOSA has been revoked before a treatment plan has been developed is a standard range sentence.  Sanctions pursuant to RCW 9.94A.664(4)(c) (imposing a sentence equal to one-half of the midpoint, and community custody, if authorized for the crime) are only available as a sanction at prescheduled progress or termination hearings, which must be scheduled upon receipt of a treatment plan.  Post-sentence review of Roberts, No. 84706-6-I (April 22, 2024).

Division II:

Burglary – To be guilty of burglary as an accomplice, a person who enters or remains unlawfully must actually know that the principal has an intent to commit a crime against persons or property therein.  The permissible inference of RCW 9A.52.040, which allows a jury to infer intent from the unlawful entry, does not allow the jury to convict if a “reasonable person” should have known that the principal’s entry was to commit a crime against persons or property therein.  State v. Azevedo, No. 57910-3-II (April 30, 2024).

Amending charges – A local court rule and policy which prohibits a downward amendment of the charges after a pretrial hearing is inconsistent with the state rules because CrR 2.1(d) allows the charges to be amended at any time before the State rests its case if the defendant’s rights are not prejudiced.  State v. Fuller, No. 58098-5-II (April 30, 2024).

(Editor’s note: The local rule in question, Grays Harbor Superior LCrR 4.2, reads, in relevant part, “The Court may refuse to grant a discretionary reduction or dismissal of charges or counts if a plea is entered after the time for the pretrial conference.”  The associated policy states that the defendant must plead as charged after the pretrial conference unless there are extenuating circumstances.  A concurrence argues that this Rule and policy also violates the doctrine of separation of powers.)

Court commissioners – A court commissioner’s decision is subject to revision by a judge, not reconsideration.  Revision is decided de novo, whereas reconsideration is decided on an abuse of discretion standard.  Here, the judge’s decision affirming the commissioner’s ruling was reversed by the Court of Appeals because the caption of the ruling referenced “reconsideration,” indicating the judge had used the wrong standard.  Fallow v. Fallow, No. 57677-5-II (April 30, 2024).

9th Circuit:

Interstate commerce – Airplanes are instrumentalities of interstate commerce, and airspace is a channel of commerce within congressional authority.  Therefore, you can’t transport cannabis by airplane even within a state where cannabis is decriminalized.  Fejes v. FAA, No. 22-70129 (April 22, 2024).

Search & seizure – The existence of an inventory search policy or practice is insufficient to establish that an inventory search was proper.  Failure to follow the governing procedures of an inventory search is part of the totality of the circumstances courts consider when deciding whether a search truly satisfies the requirements of the exception to the warrant requirement.  Here, a purported inventory search of a vehicle was held to actually be an unlawful investigatory search in part because the only items the officers listed on the inventory form was the contraband that formed the basis for the criminal charges, but not the defendant’s lawful possessions that were also in the car.   United States v. Anderson, No. 20-50345 (May 2, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF April 15, 2024

Washington Supreme Court:

Ineffective assistance – Ineffective assistance claims based on trial counsel’s failure to request a lesser-included instruction is subject to the same Strickland analysis of all ineffective assistance claims: deficient performance and prejudice.  While demonstrating prejudice is difficult given that the jury necessarily convicted of the greater-degree offence, that verdict is not a silver bullet that necessarily forecloses the possibility of prejudice.  Conversely, the failure to request the lesser-degree instruction is not per se prejudicial.  Finally, the greater punishment stemming from a conviction of the greater degree crime is not the prejudice that will satisfy the second prong.  State v. Bertrand, No. 100953-4 (April 18, 2024).

State officers – The secretary of the Department of Social and Health Services is not a “state officer” within the meaning of the Washington Constitution.  Spokane County v. Meneses, No. 101520-8 (April 18, 2024).

Division I:

Clerical errors – A Superior Court has inherent authority to correct clerical errors in its judgments.  Clerical errors are those which do not correctly convey the court’s intention, or inadvertently omitted language.  State v. Bogart, No. 84814-3-I (April 12, 2024).

Jury selection – A party cannot appeal the denial of a for-cause challenge of a juror if that party had the opportunity to exercise a peremptory challenge to remove that juror, but failed to do so, even if the party ultimately exhausted all of their preemptory challenges.  State v. Kovalenko, No. 84404-1-I (April 15, 2024).

(Editor’s note: This decision expands upon State v. Talbott, 200 Wn.2d 731, 521 P.3d 948 (2022), which held that a party who failed to use all their preemptories waives appealing a denial of a for-cause challenge.  Now, the analysis is simpler; could the party have used a preemptory against the challenged member of the venire, whether or not they ultimately used them all?)

Division II:

First aggressor – Words alone cannot constitute adequate provocation to make a defendant a first aggressor, and a jury instruction that omits this principle (the last bracketed sentence of WPIC 16.04) is insufficient when the evidence could support a finding that the defendant’s words were the initial aggression.  State v. Zeigler, No. 56585-4-II (April 16, 2024).

Division III:

Juvenile sentencing – A defendant who commits aggravated first-degree murder before age 16 after 2015 must be sentenced to 25 years to life, pursuant to RCW 10.95.030(3)(a)(i) (now RCW 10.95.030(2)(a)(i),) including any enhancements, although the sentencing court retains discretion to impose a minimum term below 25 years.  State v. Sharpe, No. 39185-0-III (April 16, 2024).

 

9th Circuit:

Self-incrimination – The compelled use of a biometric (e.g. thumbprint, face ID) to unlock an electronic device does not violate the Fifth Amendment privilege against self-incrimination.  Compelled physical acts (such as standing in a lineup, providing a handwriting exemplar or a fingerprint) are not testimonial because they do not require any “cognitive exertion;” that is, they do not require the suspect to divulge the contents of her or his mind.  United States v. Payne, No. 22-50262 (9th Cir. April 17, 2022).

(Editor’s note: This case is analyzed under the Fifth Amendment, which has been held to be coextensive with art. 1, § 9.  However, per the opinion, officers should be advised to not ask which finger unlocks the phone, as an answer would be testimonial.)

Hearsay – In a criminal case, the sworn statement of a government attorney in pleadings is not hearsay under ER 801(d)(2) because it is a statement of a party opponent, and therefore may be admissible at trial.  United States v. Mirabal, No. 22-50217 (9th Cir. Apr. 16, 2024).

(Editor’s note: The opinion suggests that such statements must still be analyzed under ER 403 – whether they may be more prejudicial or confusing than probative.)

Foreign case of interest:

Search & seizure – Constructive possession of evidence found inside a car relies on immediate control over the vehicle.  This differs from a legitimate expectation of privacy, which relies on rightful dominion.  United States v. Rogers, Nos. 22-1432/1433 (6th Cir., April 10, 2024).

(Editor’s note: This case was decided under the 4th Amendment, not the more protective art. 1, §7 of the Washington constitution, which has been held to grant more privacy rights to even passengers in automobiles.  Use caution.)Public records act – Use of the word “closed” is not determinative as to whether a public records act closing letter is sufficient to actually close the request and start the one-year statute of limitations.  To be sufficient, the letter must satisfy the “final, definitive response” test.  Follow-up questions after a closing letter do not require the agency to locate more records, but if the agency declines to do so, the response must state that no further records will be disclosed and reiterate that the statute of limitations has started to run.  Cousins v. State & Dep’t of Corr., No. 101769-3 (April 11, 2024).

 

WEEKLY ROUNDUP FOR THE WEEK OF April 8, 2024

Washington Supreme Court:

Public records act – Use of the word “closed” is not determinative as to whether a public records act closing letter is sufficient to actually close the request and start the one-year statute of limitations.  To be sufficient, the letter must satisfy the “final, definitive response” test.  Follow-up questions after a closing letter do not require the agency to locate more records, but if the agency declines to do so, the response must state that no further records will be disclosed and reiterate that the statute of limitations has started to run.  Cousins v. State & Dep’t of Corr., No. 101769-3 (April 11, 2024).

 

Division I:

Offender scoring – Laws of 2023, ch. 415, § 2 (codified at RCW 9.94A.525(1)(b)), which removed most prior juvenile adjudications from counting towards an adult offender score, is not retroactive.  Juvenile adjudications of guilt for crimes other than murder and class A sex offenses may still count towards the offender scores of adult felonies committed before July 23, 2023.  State v. Troutman, No. 84054-1-I (January 8, 2024, Motion to Publish granted in part April 8, 2024).

 

Division II:

Offender scoring – RCW 9.94A.345 and RCW 10.01.040 require a defendant to be sentenced based on the law in effect at the time the offense was committed.  Therefore, juvenile adjudications of guilt for crimes other than murder and class A sex offenses may still be included in the offender scores of adult felonies committed before July 23, 2023.  State v. Tester, No. 57532-9-II (April 9, 2024).

 

Legal Update for Washington State Law Enforcement

March 2024

 

WEEKLY ROUNDUP FOR THE WEEK OF April 1, 2024

Washington Supreme Court:

DUI – No source of law requires the calculation required by former WAC 448-16-060 to be performed by the breath test instrument.  The State can lay foundation for admitting the breath test by performing the required calculation at a later time. State v. Keller, No. 101171-7 (April 4, 2024).

Interlocutory appeals – A trial court’s order pretrial order finding that the suppression of evidence effectively terminates the case is appealable.  Such orders are mixed questions of fact and law, and are reviewed for abuse of discretion.  State v. Keller, No. 101171-7 (April 4, 2024).

Division II:

Prosecutor initiated resentencing – RCW 36.27.130 (frequently referred to as HB 6164) does not give a defendant a procedural due process right to be resentenced.  If the prosecutor declines to initiate resentencing the defendant is not entitled to bring a motion to the court.  State v. Martin, No. 58728-9-II (April 2, 2024, unpublished).

Foreign case of interest:

Geofence warrants – Geofence warrants are not categorically unconstitutional general warrants, prohibited by the Fourth Amendment.  Whether a geofence warrant is a “general warrant” or not is evaluated case-by-case, based on the warrant’s level of particularity.  State v. Contreras-Sanchez, A22-1579 (April 1, 2024).

(Editor’s note: This case analyzed the geofence warrant under the 4th Amendment, as Minnesota’s constitution has been interpreted to give no greater protection.)

WEEKLY ROUNDUP FOR THE WEEK OF March 25, 2024

Washington Supreme Court:

Preaccusatorial delay – To establish preaccusatorial delay resulted in a due process violation, a defendant must demonstrate a heightened level of prejudice when the delay is attributable to negligence, rather than intent to gain a tactical advantage.  In this case, although the Defendant did suffer some prejudice when a witness whose testimony would have supported the defense theory died before trial after a 12-year negligent delay in filing charges, the prejudice was insufficient to establish sufficient grounds for dismissing the prosecution.  State v. Stearns, No. 101502-0 (March 28, 2024).

 

Division I:

Medical hearsay exception – For statements to be admissible as a hearsay exception under ER 803(a)(4) there must be evidence that the declarant’s subjective intent for consenting to the examination was for the purpose of medical diagnosis or treatment.  If a declarant only consented to an examination because a person authorized to provide informed consent authorized the examination pursuant to RCW 7.70.065 (such as a parent) the medical hearsay exception does not apply to the statements made during the examination.  State v. Arumugam, No. 84455-5-I (March 25, 2024).

Firearm rights restoration – The new firearm rights restoration scheme in RCW 9.41.041 applies to all petitions to restore rights after the effective date of the statute (July 23, 2023).  Persons who completed the requirements to have their rights restored before the effective date of the statute do not have a “vested right” to petition under the prior statutory scheme.  Arends v. State, No. 85870-0-I (March 25, 2024, unpublished). (Editor’s note: A Motion to publish is likely.)

 

Division III:

Juvenile court warrants – The current version of JuCR 7.16 is unconstitutional because it is a substantive restriction, and not merely procedural.  The Rule irreconcilably conflicts with the Juvenile Justice Act because prohibiting a court from issuing bench warrants effectively prevents courts from imposing incarceration as a sanction, which is expressly authorized by the Act.  State v. A.M.W., No. 39113-2-III (March 28, 2024).

Fish & Wildlife inspection authority – Driving slowly in a wildlife area while wearing flame orange during modern firearm deer and elk season is an insufficient factual basis to establish that a person is presently engaged in hunting activities, authorizing a temporary stop by RCW 77.15.080.  State v. Miller, No. 38969-3-III (March 28, 2024).

 

Foreign case of interest:

Continuous surveillance – Camera surveillance of a home visible to passersby does not constitute a search under the 4th Amendment, regardless of whether the surveillance took place over an extended period of time.  United State v. Hay, No. 22-3276 (10th Cir. March 19, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF March 18, 2024

Division II:

Protection orders – For an act to constitute a willful violation of a court order restricting contact, the restrained party must know of the specific provision of the Order that her or his act violates.  Therefore, to prove the mens rea of a willful violation, the State must prove the defendant knew of the specific provision of the Order that his or her act violates, and to argue otherwise misstates the law.  State v. Morales Sanchez, No. 57354-7-II (March 19, 2024).

 

9th Circuit:

Second amendment – A pretrial release condition forbidding a defendant from possessing firearms is consistent with the nation’s historical tradition of firearms regulation.  During the founding era, most serious criminal acts and felonies constituted capital offenses, and defendants indicted on capital offenses were typically detained without bail, effectively disarming them.  United States v. Garcia, No. 22-50314 (9th Cir., March 18, 2024).

 

Foreign case of interest:

Breach of plea agreement – The prosecution can cure some breaches of their plea agreements.  The sufficiency of a cure for a breach is evaluated with a two-step process: 1) Whether a cure is needed, or even possible; and 2) whether the cure sufficiently remedied the harm from the breach.  United States v. Cruz, No. 23-1192 (3rd Cir., March 8, 2024).

 

 

 

WEEKLY ROUNDUP FOR THE WEEK OF March 11, 2024

U.S. Supreme Court:

First amendment – A public official who prevents someone from commenting on the official’s personal social-media page, on which the official occasionally posts about work, only engages in state action under 42 U.S.C. §1983 if the official both: (1) possessed actual authority to speak on the State’s behalf on a particular matter; and (2) purported to exercise that authority when speaking in the relevant social-media posts.  Lindke v. Freed, No. 22–611 (March 15, 2024).

Washington Supreme Court:

Community supervision – “Community supervision” as used in RCW 9.94A.589(5) refers to probation generally, and so includes community custody.  If an offender, while serving a sentence that includes community custody, commits another felony that also includes a term of community custody, the total of those terms cannot exceed 24 months, absent an exceptional sentence.  State v. Buck, No. 101703-1 (March 14, 2024).

Division II:

Bail – No bail bench warrants do not violate the article 1, section 20 right to bail or due process, so long as bail is set within 48 hours of arrest.  State v. Clare, No. 57332-6-II (March 12, 2024).

Foreign cases of interest:

Second Amendment – Rhode Island’s ban on large capacity magazines (defined here as a magazine with a capacity of more than ten rounds) is not inconsistent with this nation’s historical tradition of firearm regulation.  No direct historical precedent exists because mass shootings were not such a concern in the past.  However, large caches of gunpowder and Bowie knives were historically banned in response to the public safety concerns of the day.  The ban on large capacity magazines does not unduly burden the right of self-defense because people rarely, if ever, use ten rounds or more when using firearms in self-defense.  Ocean State Tactical v. Rhode Island, No. 23-1072 (1st Circuit, March 7, 2024).

Second Amendment – The (federal, nonviolent) felon-in-possession laws survive N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 142 S. Ct. 2111, 213 L.Ed.2d 387 (2022).  United States v. Dubois, No. 22-10829 (11th Circuit, March 5, 2024).

Candor to the tribunal – Sanctions were appropriate when the Philadelphia District Attorney’s office, in conceding a previously imposed death penalty, misled the Court by: 1) claiming they had communicated with the victim’s family, when in fact they had only contacted one of four survivors, and not clearly explained they were conceding to the one; and 2) representing they had investigated evidence cutting against the defendant’s habeas claim, when in fact they had failed to investigate the defendant’s poor prison record, including an escape conviction.  The “mild” sanctions of requiring the office to accompany concessions with a “full, balanced explanation of [the] facts” and requiring the elected District Attorney to apologize to the victim’s family in writing were warranted.  Wharton v. Graterford, No. 22-2839 (March 8, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF March 4, 2024

Division I:

Remote appearances – Resentencing the defendant over Zoom while he remained in prison did not violate his rights to be present, have counsel, and be free from restraint.  The defendant was able to interrupt the prosecutor, so he was clearly able to participate; he was able to confer with his attorney for 30 minutes in a breakout room while everyone waited, so he had counsel; and appearing from prison is not equivalent to shackling.  The Supreme Court’s general order regarding remote COVID operations and the sentencing court’s subsequent emergency general order both authorized the remote appearance.  Additionally, any error was harmless given that the defendant’s offender score remained 9+ on all counts even after resentencing, and his longest sentence was life without the possibility of early release.  State v. Griffin, No. 85918-8-I (March 4, 2024).

Resentencing – RCW 9.94A.480 does not require an entirely new judgment & sentence each time the document is amended or corrected.  The statute permits the use of an Order amending or correcting portions of the J&S.  State v. Griffin, No. 85918-8-I (March 4, 2024).

 

Division II:

Restoration of firearms rights – Sealed juvenile adjudications that resulted in a loss of firearm rights are still disqualifying offenses.  Sealed juvenile class A felony adjudications preclude restoration of firearms rights.  McIntosh v. State, No. 57583-3-II (March 5, 2024).

Right to confer with counsel – A trial court’s failure to establish “ground rules” for a defendant appearing remotely to confer with counsel appearing from a different location is not manifest error if the defendant fails to show how the outcome would have been different.  State v. Dimas, No. 57528-1-II (March 5, 2024).

Child hearsay – The Ryan factors concern the reliability of a child’s statements, not the reliability of the witness to whom the child discloses the information.  State v. Houser, No. 57808-5-II (March 6, 2024).

 

Division III:

GR 37 – An objective observer could not have viewed race or ethnicity as a factor in the use of a preemptory against a Latinx member of the venire where: 1) the trial court narrowly denied a challenge to the juror for cause because the juror had been rehabilitated after saying he could not be fair and impartial; 2) the State did not attempt to strike any other venire jurors of color, and; 3) the State did not ask too many or too few questions of the challenged juror.  State v. Hernandez, No. 38980-4-III (March 5, 2024).

 

Attorney General Opinions:

Visiting judges – A visiting judge must hold the proceedings in the county in which the action originated, unless remote proceedings are permitted by law.  With the parties’ consent, a visiting judge may hold a hearing in the visiting judge’s home county.  If a visiting judge appears remotely from his or her home county, the clerk of the visited county is still responsible for keeping a record of the proceedings.  And while a visiting judge may delegate authority to an appointed commissioner in the county the judge is visiting, a visiting judge lacks authority to appoint a commissioner or pro tem commissioner in the visited county.  AGO 2024 No. 1 (March 7, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF FEBRUARY 26, 2024

Washington Supreme Court:

Assault, intent – Pointing a firearm at the victim is not required to prove the specific intent to create apprehension and fear of injury in a victim; a defendant may commit an assault with a deadly weapon by displaying a firearm in a menacing fashion without pointing or aiming it.  In re Pers. Restraint of Arntsen, No. 101635-2 (February 29, 2024).

Assault, apprehension – The evidence is sufficient to prove reasonable apprehension of an assault when a victim expresses fear of being shot, even if the victim also concedes other, more generalized fears of what would happen, or uncertainty of the defendant’s actual intentions.  In re Pers. Restraint of Arntsen, No. 101635-2 (February 29, 2024).

 

9th Circuit:

Arms – The panel opinion in Teter v. Lopez, which held that butterfly knives are an “arm” protected by the Second Amendment, has been vacated and will be reconsidered en bancTeter v. Lopez, No. 20-15948 (February 22, 2024).

 

WEEKLY ROUNDUP FOR THE WEEK OF FEBRUARY 19, 2024

Division III:

Indeterminate Sentence Review Board – The ISRB fails to meaningfully apply an inmate’s presumption of release when the record demonstrates that it has disregarded an expert evaluator’s recommendations and instead relied upon conclusory statements about the defendant’s risk to reoffend.  Pers. Restraint of Lambert, No. 39748-3-III (February 20, 2024).

Prosecutorial error – In a personal restraint petition, prosecutorial error that inserts racial bias into the proceedings is structural error, requiring reversal of the conviction without a showing of prejudice.  Because no prejudice need be shown, such error requires automatic reversal even when the defendant is not a member of an historically marginalized group, such as the white male defendant in this case.  PRP of Skone, No. 39087-0-III (February 22, 2024).

(Editor’s note: The dissent, which starts on page 81 of this 106 page opinion, is worth reading.)

 

U.S. Supreme Court:

Inconsistent verdicts – An inconsistent verdict that is an acquittal, including a verdict of not guilty by reason of insanity, counts as an acquittal for double jeopardy purposes, and once accepted by the trial judge, cannot be retried under Georgia’s “repugnancy doctrine,” where inconsistent verdicts that are acquittals are subject to appellate review and potential retrial.  McElrath v. Georgia, No. 22–721 (February 21, 2024).

(Editor’s note:  Washington does not follow the “repugnancy doctrine,” and instead follows the “Dunn” rule; that consistency between verdicts is not required.  See e.g. State v. Ng, 110 Wn.2d 32, 46-47, 750 P.2d 632 (1988).  This case is included because the concurrence stresses the decision does not prevent a trial judge from sending a jury that has rendered inconsistent verdicts back to deliberate further, which may be an acceptable procedure in Washington.  See State v. McNeal, 145 Wn.2d 352, 363, 37 P.3d 280 (2002).)

 

 

WEEKLY ROUNDUP FOR THE WEEK OF FEBRUARY 12, 2024

Division II:

Outrageous government conduct – A trial court’s decision whether to dismiss for outrageous governmental misconduct is reviewed for abuse of discretion, even if the facts are not disputed.  Here, a WSP “Net Nanny” case was not outrageous government conduct, even though the police used deception, because the defendant clearly pursued the “victim.” State v. Stott, No. 57114-5-II (December 19, 2023, publication ordered February 13, 2024).

Local ordinances – A county ordinance that prohibits the disposal of waste generated within the county in other parts of the state, except at certain designated sites, does not reach outside the county.  The ordinance is local in nature because it regulates waste generated within the county. Regulation of waste is part of the regulation of sanitation granted to local governments by article XI, section 11 of the Washington constitution and such an ordinance is a reasonable exercise of the County’s police power.  SkyCorp, Ltd. v. King County, No. 57452-7-II (February 13, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF FEBRUARY 5, 2024

Division I:

GR 37 – The presumptively invalid reasons enumerated in GR 37(h) are presumptively invalid reasons for striking any juror, not just jurors of historically excluded racial or ethnic groups.  The rule is intended to remove dismissal based on views about race and ethnicity, as well.  It would not otherwise survive a strict scrutiny analysis under the equal protection clause.  State v. Walton, No. 83538-6-I (February 5, 2024).

 

9th Circuit:

Graffiti – SMC 12A.08.020(A)(2), Seattle’s graffiti ordinance (similar to Malicious Mischief 3rd Degree, RCW 9A.48.090(1)(b)) is neither facially overbroad nor constitutionally vague.  Tucson, et al v. City of Seattle, et al, No. 23-35449 (February 2, 2024).

 

Foreign case of interest:

Impeachment – Under ER 608(b), a party may not impeach a witness using extrinsic evidence to prove specific incidents of dishonest conduct.  “Extrinsic evidence” includes evidence that was admitted at that trial or hearing, but that the witness did not testify about.  Here, recordings of the witness’ phone calls, where the witness discusses participating in and planning deceitful conduct, previously admitted into evidence, were improperly used for the purpose of attacking the witness’ credibility because the witness did not testify concerning the content of the calls.  Lech v. Von Goeler, No. 22-1507 (1st Circuit, February 2, 2024)

(Note: As of the time this was written, the 1st Circuit’s website isn’t responding.  Lexis/Westlaw citation is 2024 U.S. App. LEXIS 2415 or 2024 WL 396346.)

(Editor’s note: This case was decided under the federal evidence rule.  The equivalent Washington rule is phrased differently, but substantively similar.)

WEEKLY ROUNDUP FOR THE WEEK OF JANUARY 29, 2024

Division II:

Juror bias – A defendant who fails to exhaust his or her preemptory challenges is barred from challenging the inclusion of a juror on the basis of actual bias.  PRP of Perry, No. 57397-1-II (January 30, 2024).

9th Circuit:

Inventory searches – An inventory search conducted based on custom instructions, written for a specific operation, is not an exception to the warrant requirement of the 4th Amendment.  Inventory searches must be conducted pursuant to standardized (although not necessarily written) instructions that are applied consistently to all operations.  Snitko v. USA, No. 22-56050 (9th Cir. January 23, 2024).

Foreign cases of interest:

Potentially impeachable disclosures – Withholding adverse credibility findings of law enforcement officers when the district attorney disagrees with the finding and withholding information about instances of officer misconduct when a particular bad act cannot be attributed to a specific officer violates the district attorney’s duty to disclose potentially impeachable information.  Failing to obtain access and review all documentation that the U.S. Attorney reviewed in their investigation of a police agency is a failure of the District Attorney’s duty to investigate such allegations.  Graham v. District Attorney for the Hampden District, SJC-13386 (Mass., January 23, 3024).

(Editor’s note: The Massachusetts courts have held their District Attorneys have a broader duty to disclose than Federal Brady requirements.)

Voluntary pleas – A defendant’s plea was rendered involuntary when his attorney told him that the jury “would be [composed] of no one of minority color” and the jury “would be culled of any minorities.”  USA v. Swan, No. 22-6132 (10th Circuit, January 23, 2024).

(Editor’s note: The federal rule for allowing withdrawal of a plea is more permissive than Washington’s, but this case is included as a contrast to State v. Horntved, No. 38928-6-III (December 12, 2023) wherein our Court of Appeals held that similar statements by a prosecutor rendered a plea involuntary, but implied that a similar statement by defense counsel would not have had the same outcome.)

WEEKLY ROUNDUP FOR THE WEEK OF JANUARY 22, 2024

Division II:

Offender scoring – “Out-of-state” convictions, as used in RCW 9.94A.525(3), unambiguously includes convictions from foreign countries, such as Australia.  State v. Lewis, No. 57076-9-II (January 23, 2024).

Attorney-client privilege – Recording multiple jail calls made between the defendant and counsel, video recording several meetings between the defendant and counsel, and opening at least one piece of legal mail are intrusions on the defendant’s sixth amendment rights, regardless of whether any state actors reviewed the recordings or mail.  As a matter of law, the State fails to carry its burden to disprove prejudice beyond a reasonable doubt when it fails to call officers from the agency that investigated the underlying crime the defendant is charged with and persons from the prosecutor’s office to testify they did not review the communications.  State v. Couch, No. 56814-4-II (January 23, 2024).

(This summary is based on a summary prepared by King County DPA Stanley Lloyd.  Thanks, Stanley!)

Foreign case of interest:

Eyewitness testimony – A police officer’s testimony that he knew that the defendant was the person depicted in surveillance footage violated ER 701(a) where the officer was not an eyewitness to the events.  United States v. Daniels, No. 22-10408 (11th Circuit, January 24, 2024).

(Editor’s note: This issue probably could have been solved by either: 1) laying foundation for the officer’s opinion by introducing the facts underlying the identification; or 2) if the officer had testified he believed that the defendant was the person depicted in the footage.)

WEEKLY ROUNDUP FOR THE WEEK OF JANUARY 15, 2024

Washington Supreme Court:

Joinder of defendants – The standard of review of trial court decisions granting or denying joinder motions is abuse of discretion.  State v. Martinez, No. 101124-5 (January 18, 2024).

Joinder of defendants – Joinder of defendants should not be granted pursuant to CrR/CrRLJ 4.3(b)(3) simply because of the commonality of the charges and victims.  If the defendants are not accomplices or coconspirators (CrR/CrRLJ 4.3(b)(1) or (2)) there must be a substantial overlap in the evidence so that it would be difficult to separate proof of an offense committed by one defendant from the proof of an offense committed by the other, or a common scheme or plan.  State v. Martinez, No. 101124-5 (January 18, 2024).

Joinder of defendants – Potential prejudice from joinder of defendants should be analyzed by the factors outlined in State v. Moses, 193 Wn. App. 341, 372 P.3d 147 (2016), read in conjunction with CrR/CrRLJ 4.3(b):

  1. antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive;
  2. a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining each defendant’s innocence or guilt;
  3. a co-defendant’s statement inculpating the moving defendant; and
  4. gross disparity in the weight of the evidence against the defendants.

State v. Martinez, No. 101124-5 (January 18, 2024).

Division II:

Exceptional sentences – RCW 9.94A.535(2)(d), which allows an upwards exceptional sentence when “[t]he failure to consider the defendant’s prior criminal history which was omitted from the offender score calculation… results in a presumptive sentence that is clearly too lenient.” requires a jury finding that the standard range sentence is “clearly too lenient” to impose a determinate sentence above the standard range.  State v. Eller, No. 58050-1-II (January 17, 2024).

(Editor’s note: The opinion distinguishes cases in which “clearly too lenient” formed the basis of exceptional sentences imposed as consecutive sentences, or minimum terms above the standard range in determinate-plus sentences imposed pursuant to RCW 9.94A.507.)

Resentencing – A miscalculation of an offender score is not a fundamental defect resulting in a complete miscarriage of justice when the record indicates that the sentencing court would have imposed the same sentence on other, legitimate grounds, even if the standard range had been different.  State v. Pascuzzi, No. 57221-4-II (January 17, 2024).

Division III:

Collateral attack – The erroneous admission of prejudicial evidence will not justify collateral relief unless the evidence had a substantial and injurious effect on the jury’s decision.  In re Pers. Restraint of Quintero, No. 38585-0-III (January 18, 2024).

Foreign case of interest:

Prosecutorial immunity – A prosecutor is not entitled to absolute prosecutorial immunity when he or she seeks out a new witness, post-charge, to plug a hole in the case (here, a jailhouse snitch to provide motive).  Seeking out a new witness is investigatory, not advocacy.  Roberts v. Lau, No. 22-2340 (January 11, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF JANUARY 8, 2024

Ninth Circuit:

Eleventh amendment immunity – A state judge cannot be sued in federal court under 42 U.S.C. § 1983 for illegally detaining someone by imposing unaffordable bail because state courts and state judges have 11th Amendment immunity.  Mark Munoz, et al v. Superior Court of Los Angeles County, et al, 22-55941 (January 9, 2024).

Foreign case of interest:

COVID protocols, Jury selection – Individuals who have not been vaccinated against COVID do not qualify as a “distinctive group” for Sixth Amendment purposes, so the systematic exclusion of the unvaccinated does not violate the defendant’s right to a jury made up of a fair cross-section of the community.  United States v. O’Lear, No. 22-3835 (6th Circuit, January 8, 2024).

WEEKLY ROUNDUP FOR THE WEEK OF JANUARY 1, 2024

Division I:

Incest – RCW 9A.64.020, which criminalizes sexual intercourse between close relatives, is not facially unconstitutional on the basis that it could criminalize consensual sexual conduct between consenting adults, nor does it criminalize “passive conduct.”  State v. Gantt, No 84445-8-I, (January 2, 2024).

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