Case Law Updates - July 12-23, 2010

WASHINGTON SUPREME COURT



Statute of Limitations: No tolling of the statute of limitations occurs when the defendant goes out of state for job-related training.

State v. Williamson, ___ Wn.2d ___ (No 84036-9)(July 15, 2010)



Facts: The Defendant was charged with two counts of indecent liberties, one count occurring outside the statute of limitations (SOL) by 14 days. The Defendant had been out of state for job related training for 2 weeks during the relevant time period. The trial court found that there was no evidence that the defendant intended to relocate and dismissed the case. The COA reversed, holding that the mere absence from the state was sufficient to toll the SOL.



Held: Mere absence from the state, without an intent to relocate, does not toll the statute of limitations.



Information/Sufficiency: An information must allege the essential elements to be constitutionally sufficient.

State v. Brown, ___ Wn.2d ___ (No. 84083-1)(July 15, 2010)



Facts: The defendant was charged with escape for failing to return to jail following a furlough granted to allow him to attend drug treatment. The complaint alleged that he escaped from custody “contrary to the form of the Statute in such cases made and provided.” He challenged the information for the first time on appeal.



Held: The information failed to allege the defendant acted knowingly, an essential element of escape. When a challenge to the information is raised for the first time on appeal, the court construes the document liberally, in favor of validity The court asks (1) whether the essential elements appear in any form or can be found by any fair construction and if so (2) whether the defendant was prejudiced. Here, the essential element did not appear by any fair construction. The proper remedy was dismissal without prejudice.



Duress: Duress does not require a direct threat; it may be based on an implicit threat, so long as the perception of the threat is reasonable.

State v. Harvill, ____ Wn.2d ___ (No 82358-8)(July 22, 2010)



Facts: The defendant was charged with delivery of cocaine and asked for a jury instruction on the defense of duress. The trial court denied the instruction on the ground that duress required evidence of an explicit threat. The defendant had testified and presented evidence of an implicit threat, based on his knowledge of the informant and past violent behavior of the informant.



Held: Duress can be asserted based on an implied threat if the perception of a threat is reasonable. The perception of the threat of harm can take into account the history between the actors.



Information/Sufficiency: The court can consider the information as a whole when liberally construing one count in a multiple count information

State v. Nonog, ___ Wn.2d. ___ (No 82094-5 )(July 22, 2010)



Facts: The information charged the defendant with interference with reporting domestic violence without specifying the underlying domestic violence crime. Two other counts in the same information charged crimes of domestic violence occurring on the same day.



Held: The information is liberally construed when challenged for the first time on appeal. The court may consider the whole information when liberally construing the challenged count. Here, the information was sufficient because it reasonably apprised the defendant that the underlying crimes of domestic violence were the ones alleged elsewhere in the same information.



COURT OF APPEALS



Search/Seizure: Dog sniff of area outside of a parked car is not a search.



ER 4040(b): Evidence of prior bad acts properly admitted as circumstantial

evidence connecting the defendant to the crime.



Limiting Instruction: Use of the permissive word “may” in the limiting instruction did not result in the judge commenting on the evidence.



Open Door: A defendant may open the door to inadmissible evidence, even if constitutionally protected, if the rebuttal evidence is relevant.



State v. Hartzell; State v. Tieskotter, ___ Wn.App.___ (Div I)(July 19, 2010)



Facts: These co-defendants were convicted of assault, possession of unlawful firearms and deadly weapon enhancements for shooting into an apartment while a woman and her daughter were sleeping. Police connected the defendants to the crime soon after the event, when investigating other incidents in which the defendants possessed firearms that later were tested and connected to the crime. Evidence of the other incidents was admitted at trial under ER 404(b) to show a connection between the defendants, the guns used and the crime. A limiting instruction was offered.



For defendant Harzell, police used dog to sniff of the area outside the defendant’s car to locate a firearm.



Held: The dog sniff of the air outside the parked car was not a search because the defendant had no expectation of privacy in the air coming from the open window in his vehicle. The prior bad acts evidence was properly admitted because it was circumstantial evidence connecting the defendants to the guns used in the assault. Several other issues were raised and addressed, including open door, maximum sentence, prosecutorial misconduct and sufficiency of the evidence, all resolved against the defendant.



General/specific: Under 9A.76.175 and 46.61.020, charges relating to providing false information to law enforcement, do not punish the same conduct.

State v. Ou, ___ Wn.App.___ (Div I)(July 19, 2010)



Facts: The defendant was charged with knowingly making a false or misleading statement under RCW 9A.76.175, a gross misdemeanor, for providing a false name to a police officer during a traffic stop. On appeal, he argued that he should have been charged under the more specific statute, refusal to give information or giving a false name or address under RCW 46.61.020.



Held: When a specific statute and a general statute punish the same conduct, the statutes are concurrent and the State may only charge under the specific statute. Here, the general statute contained elements the specific statute did not. Moreover, a person could violate 46.61.020 without violating 9A.76.175. Thus, the crimes to do not punish the same conduct.



Dependency: For duress to be grounds to revoke consent to adoption, it must be exerted by the party requesting consent.

In Re the Welfare of M.S., ___ Wn.App.___ (Div I)(July 19, 2010)



Facts: The appellant birth mother voluntarily relinquished her rights to DSHS in exchange for an open adoption arrangement. She later sought to revoke her consent arguing duress based on her mother’s conduct.



Held: Duress exerted by the party requesting the parent’s consent is a basis to revoke the consent. Here, the mother of the birth mother was not he party requesting consent, DSHS was.



Public Trial: The trial court musts consider the Bone-Club factors prior to closing the court room to the public.

State v. Bowen, ___ Wn.App.___ (Div II)(39096-5-II)(July 20, 2010)



Facts: The defendant was arrested for possession of drugs and firearms. At trial, the court conducted some of the voir dire in chambers without conducting the Bone-Club analysis and without considering alternatives. Defense counsel failed to object.



Held: A trial court may close a courtroom under certain circumstances, but it must first apply the Bone-Club guidelines, which include considering less restrictive alternatives to closure. Here, the trial court violated the defendant’s public trial right by conducting voir dire of some of the jurors in chambers because it did not conduct the proper analysis. The court distinguishes this case from St v. Momah and analogizes this case to St v. Strode, both recent cases dealing with a similar issue.



Assault: Forcing unwanted medical attention may constitute an assault.

State v. Koch, ___ Wn.App.___ (Div II)(38429-9-II)(July 20, 2010)



Facts: The defendant was convicted of manslaughter and criminal mistreatment in connection with the death of his father. He had been caring for his father, who was ill and refused medical treatment. Previously, the defendant had slapped his father during an argument pertaining to his father’s need for medical assistance. The father had reported the slap to the police and the defendant was prosecuted for assault. At trial, the defendant produced evidence that his father refused medical care and sought to introduce a jury instruction that forcing unwanted medical attention may constitute an assault. The trial court denied the instruction.



Held: A defendant has a due process right to jury instructions that support his theory of defense if arguably supported by the evidence. Here, the court erred in denying the defendant’s proposed jury instruction.



Exclusion of Witnesses(ER 615): A court must conduct a hearing to determine the factual circumstances surrounding a possible violation of ER 615 before excluding a witness.

State v. Szuka, ___ Wn.App.___ (Div II)(38042-1-II)(July 20, 2010)



Facts: The defendant was charged with bail jumping and other counts. At trial, he planned to call the bail bondsperson as a witness. The judge had seen the defendant and the witness talking outside the courtroom and overheard a part of their conversation including what testimony the witness would provide. The judge advised the parties the next day about what he had overheard and ordered that the witness would not be allowed to testify.



Held: The trial judge erred when excluding the defense witness’ testimony. Here, the trial judge had become a witness when he overheard the conversation. He notified the parties and made a statement about what he heard, but was not subject to cross examination. The trial judge did not conduct a factual hearing into the possible ER 615 violation, and imposing the harshest punishment upon the defendant was improper.



Persistent Offender: An adult conviction for a juvenile defendant is a most serious offense if the juvenile knowingly and intelligently waives a decline hearing and stipulates to adult court jurisdiction.



404(b): Evidence of gang affiliation and witness intimidation may be admitted to show intent and knowledge.

State v. Saenz, ___ Wn.App.___ (Div III)(27683-0-III)(July 13, 2010)

Facts: The defendant was convicted of two counts of assault 1 and unlawful possession of a firearm. A witness testified at trial that he had received threats and was assaulted in jail by a group of inmates that he assumed were acting on behalf of the defendant.



At sentencing the defendant challenged whether a prior offense, a conviction for assault 2 which occurred when the defendant was 15 and which was transferred to adult court qualified as a prior most serious offense. The defendant had waived a decline hearing and had stipulated to adult jurisdiction in that case.



Held: The trial court did not abuse its discretion when it admitted the evidence of gang affiliation and witness intimidation. The trial court weighed the probative value of the evidence against the potential prejudice. The court determined that the evidence of gang affiliation was probative to show that the shooting was intentional not accidental and that the intimidation showed guilty knowledge of the defendant and that in both instances the probative value outweighed the potential prejudice.



The prior conviction for assault 2 when the defendant was 15 may be scored as a most serious offense. The defendant waived the decline hearing and stipulated to jurisdiction of adult court. The waiver was knowing and intelligent.



Guilty Plea: A guilty plea based on mistaken information concerning sentencing consequences is involuntary; a defendant may choose specific performance or may move to withdraw his plea.

In re the Post Sentence Review of Hudgens (Div III) (28423-9)(July 13, 2010)



Facts: The defendant plead guilty to Rape of a Child in the Third Degree and the court sentenced him to a determinate sentence followed by a period of community custody. Neither the parties nor the court knew that he was supposed to receive an indeterminate sentence, the maximum being the statutory maximum and the minimum term within the standard range. The DOC contacted the State about the error and moved to have the sentence amended to comply with the statute. The defendant sought specific performance, which the trial court granted.



Held: The defendant’s plea was involuntary because it was based on a mistake as to the consequences. He was entitled to either seek specific performance or move to withdraw his plea. Here, the defendant’s choice was not unjust and the trial court properly granted his request for specific performance.