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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).