Case law Updates - September 7-17, 2010

WASHINGTON SUPREME COURT

Public Records Act (PRA) – An agency must specify exemption and give a brief explanation how exemption applies when withholding documents.

Sanders v. State ___ Wn.2d ___ (No. 82849-1) (Sep. 16, 2010)

Facts: Justice Sanders sued the AG’s office for inadequately responding to his PRA request and for withholding nonexempt documents in violation of the PRA. This is long in depth case on the PRA with many holdings.

Held: (1) An Agency withholding or redacting a record must specify the exemption and give a brief explanation of how the exemption applies. The AGs office failed to do so here when all it provided was a list of documents and an indication of which exemption applies. (2) The remedy for violating the brief explanation requirement is consideration when awarding costs, attorneys’ fees and penalties. (3) An agency’s decision to produce documents after suit is filed does not admit that the initial withholding was wrongful. (4) The “common interest” doctrine applies to the PRA as it relates to waiver of confidence in communications. (5) The work product privilege protects documents even if they do not specify on their face a relevant controversy. (6) Documents can be exempt as work product even if created before an anticipated controversy. (7) There is a lengthy analysis about proper calculation of penalty for wrongful withholding.

Intimidation of a Public Servant/Sufficiency: Evidence must show an attempt to influence; a suspect’s mere threats or generalized anger is not sufficient on its own.

State v. Montano ___ Wn.2d ___ (No. 82855-5) (Sep. 16 2010)

Facts: Montano was detained for investigation of assault. He refused to cooperate and resisted the officer’s commands. Another officer responded and tazed him, and he was arrested. On the way to jail, he made several threatening and insulting comments to the officer. Montano was charged with assault, resisting arrest and intimidation of a public servant. The trial court granted his motion to dismiss the intimidation count pursuant to Knapstad.

Held: The state can not bring an intimidation charge anytime a defendant insults or threatens a public servant. More than threats alone or anger is necessary to prove intimidation of a public servant. There must be evidence that a suspect engaged in the behavior for the purpose of influencing the public official’s actions.

71.09: State may not compel a polygraph as part of a pre-trial evaluation pursuant to 71.09.040(4).

In re Detention of Hawkins ___ Wn.2d ___ (No. 82907-1)(Sep. 9, 2010)

Facts: The State filed a petition under 71.09 against Hawkins and sought to compel a pre-trial polygraph examination under 71.09.040(4). The statute requires the court, once probable cause is determined, to transfer the person to a facility “for an evaluation as to whether the person is a sexually violent predator.” The statute does not mention the use of a polygraph as part of the evaluation, although elsewhere in 71.09 the legislature has authorized the use of polygraphs.

Held: The legislature did not intend the statute to provide for a polygraph as part of the evaluation. If it had, it would have included the language. 71.09.040(4) prohibits the state from compelling a polygraph as part of a pre-trial evaluation.


Sentencing/Washout: Jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.

State v. Ervin ___ Wn.2d ___ (No. 83244-7) (Sep. 9, 2010)

Facts: Ervin was convicted of felony violation of a no contact order. At sentencing, he argued that his prior class C felonies had washed. He had spent 17 days in jail on a probation violation stemming from a misdemeanor conviction during the five year period he was supposed to be in the community without committing any crime that results in conviction.

Held: Serving jail time for a misdemeanor probation violation does not interrupt the washout period on a felony.


Sentencing/Community Custody: Condition of sentence in drug case barring use of certain items unconstitutionally vague.

State v. Sanchez Valencia ___ Wn.2d ___ (No. 82731-1) (Sep. 9, 2010)

Facts: Sanchez-Valencia and his co-defendant were convicted of drug crimes. Their sentences included conditions barring them from using items that could be used to ingest or process controlled substances or to facilitate the sale or transfer of controlled substances, including scales, pagers, police scanners, and hand held electronic scheduling and data storage devices. Because they were still incarcerated when the initial appeal was heard the COA declined to hear their appeal as not ripe.

Held: The vagueness challenge was ripe and the conditions were unconstitutionally vague.



WASHINGTON COURT OF APPEALS

Lesser Included: Unlawful use of drug paraphernalia is not a lesser offense of possession of a controlled substance.

State v. Laplant ___ Wn.App.___ (Div II) (No. 36902-5)(Sep. 14, 2010)

Facts: LaPlant was charged with possession of methamphetamine after police lawfully searched him and found a baggie with meth residue. He admitted to using meth from the bag the night before. At trial, he sought an instruction on the lesser included offense of use of drug paraphernalia.

Held: A defendant can possess a controlled substance without using drug paraphernalia. Proof that a defendant used paraphernalia requires proof of an element not found in possession.


Confessions: Statements suppressed when deliberate two step interrogation technique undermines Miranda.

State v. Hickman___ Wn.App.___ (Div II) (No. 39039-6)(Sep. 14, 2010)

Facts: Hickman was convicted of failure to register. When officers tried to locate him at his address, they were told by other residents that he moved. Hickman contacted police the same day, and was directed to report to the police station and to fill out a new registration form. He was told there would be an administrative part to his interview, then a criminal investigation portion of the interview. He provided information about his current address and the past address/residence. After doing so, he was advised of his Miranda warnings and provided a statement. He was not advised his pre-Miranda statements would not be used against him.

Held: Post-warning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warnings do not effectively apprise a suspect of his rights must be suppressed. Here, under the unique circumstances of this case, the Miranda warnings were not sufficient to advise Hickman of his rights.


Jury Instructions: Instructions must be clear that there are separate mens rea elements for intentional assault and injury caused by recklessness or negligence.

State v. Holzknecht ___ Wn.App.___ (Div II) (No. 63017-2)(Sep. 13, 2010)

Facts: Holzknecht was charged with three counts of assault of a child 2 for alleged assaults on his infant daughter. He was convicted of two counts as charged and one lesser count of assault on a child 3. On appeal he challenged the jury instructions, arguing the state was relieved of it burden to prove the separate mens rea elements of intentional assaults and that the injury was caused by recklessness or criminal negligence.

Held: The instructions did not relieve the state of its burden. The instructions properly advised the jury of the separate mens rea elements for the assault and the injury. The jury verdict finding the defendant guilty of a lesser in one count further supports a finding that the jury was not confused by the instructions.

Defense: Good faith claim of title defense applies to theft prosecutions and does not extend to theft related crimes such as PSP.

State v. Hawkins ___ Wn.App.___ (Div III) (No. 28118-3)(Sep. 9, 2010)

Facts: The defendant was convicted of possession of stolen property. His attorney failed to raise the defense of good faith claim of title. On appeal, he alleged his attorney was ineffective for failing to raise the defense.

Held: The good faith claim of title defense does not apply to theft related crimes, such as possession of stolen property crimes. Defense counsel was not ineffective for failing to raise the defense.


Unlawful Possession of Firearm (UPFA): Firearm need not be operable during the commission of the crime.

State v. Raleigh ___ Wn.App.___ (Div II) (No. 39221-6)(Sep. 8, 2010)

Facts: Raleigh was arrested with two others leaving the scene of a residential burglary. A search of their vehicle produced a box containing a real gun and two toy guns. He was charged with unlawful possession of a firearm (UPFA). The real gun was not working, pitted and rusty, but it was tested and later made operable by the state’s firearm expert. Raleigh was convicted of unlawful possession of a firearm. On appeal, he argued that the state must prove the firearm was operable for a UPFA charge.

Held: For purpose of the crime of UPFA, the state must prove the defendant possessed a firearm and the relevant prior conviction. The firearm need not be operable at the time of the offense for the crime of UPFA.


Jurisdiction/Tribal Lands: The state has jurisdiction over all Indians while operating a motor vehicle on public roads on an Indian Reservation.

State v. Abrahamson ___ Wn.App.___ (Div I) (No. 62699-0)(Sep. 8, 2010)

Facts: Abrahamson, a member of the Spokane Indian Tribe, was charged in Snohomish County Superior Court with several criminal traffic offenses which occurred on the Tulalip Indian Reservation. He challenged the State’s jurisdiction over criminal traffic matters on tribal land.

Held: The state has assumed jurisdiction over Indians operating motor vehicles on public roads on an Indian Reservation. RCW 37.12.010 is unambiguous.