Case Law Updates; October 18 - 29, 2010

WASHINGTON SUPREME COURT

Merger/Juvenile Sentencing: First degree assault and first degree robbery do not merge in the juvenile context.

State v. S.S.Y., ___ Wn.2d ___ (Oct.28, 2010)
Facts: S.S.Y., a juvenile, was convicted of first degree assault and first degree robbery for attacking another juvenile and taking his MP3 player.
Held: The legislature intended to punish first degree assault and first degree robbery as separate crimes. They do not merge in the juvenile context.

71.09: In a Chapter 71.09 RCW trial, the court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative.

71.09: In a Chapter 71.09 RCW trial, it is relevant evidence that a person would be subject to another 71.09 proceeding if that person were released and committed a recent overt act.

In re Post, ___ Wn.2d ___ (Oct.28, 2010)
Facts: The State sought to have Mr. Post civilly committed under Chapter 71.09 RCW. At trial the court allowed the State to present evidence about the treatment that would be available to Mr. Post if he were civilly committed and about the possibility of future release to a less restrictive alternative.

Held: The court erred when it allowed the admission of evidence about the treatment available at the Special Commitment Center and about the possibility of future release to a less restrictive alternative. This error was not harmless.

Evidence that, if released, Mr. Post could be subject to another 71.09 proceeding if he were to commit a recent overt act would be relevant on re-trial.

Self-Defense: Self-defense is available when a weapon accidentally discharges, and it was an appropriate defense in this case.

State v. Werner, ___ Wn.2d ___ (Oct.28, 2010)
Facts: Mr. Werner had a handgun with him when he was approached by several of his neighbor’s dogs. He asked his neighbor’s friend to call off the dogs. There was evidence at trial that the neighbor’s friend refused. The gun Mr. Werner held went off, discharging into the ground. Mr. Werner claimed this was an accident. At trial for first degree assault, Mr. Werner requested jury instructions on self defense, but the court refused to give them.

Held: Mr. Werner was entitled to self defense jury instructions. The defense is available when a weapon accidentally discharges. There was evidence here that Mr. Werner was justified in acting in self defense against his neighbor’s friend, who may have refused to call off the dogs.

WASHINGTON COURT OF APPEALS


Privacy Act: Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.

CrR 4.6: A deposition is not appropriate simply because a witness refuses to allow defense counsel to tape record an interview.

State v. Mankin,___ Wn.App.___ (Div. II) (Oct.19, 2010)
Facts: Mr. Mankin was charged with manufacturing methamphetamine, and he sought to interview the police officers involved in the case. The officers were willing to talk to defense counsel, but, because they refused to be tape recorded, defense counsel terminated the interviews. Mr. Mankin then moved to depose the officers, and the trial court granted the motion.

Held: Chapter 9.73 RCW prohibits recording private conversations without the consent of all parties involved. Defense interviews with police officers are not private conversations as defined by Chapter 9.73 RCW.

CrR 4.6(a) allows a deposition only in certain circumstances. One of those circumstances is when a witness refuses to discuss the case. Here, the court erred in ordering depositions. Refusal to be tape recorded is not a refusal to discuss the case.

Sufficiency /Gang Evidence: When the evidence showed the defendant was member of a subgroup of a gang, sufficient evidence showed he was acting as a member of a gang.

Double Jeopardy: Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.

Bill of Particulars: A bill of particulars does not prejudice a defendant if the defendant knows what the State seeks to prove.

State v. Gatlin,___ Wn.App.___ (Div. III) (Oct.21, 2010)

Facts: Mr. Gatlin and a friend, Mr. Lambert, decided to form a group called the 4 Block Crips in Dayton, Washington as a subset of the Walla Walla gang called the Duce 47 Crips. There were no other members of the 4 Block Crips. Mr. Gatlin and Mr. Lambert invited a third person, M.W., to join the 4 Block Crips. When M.W. declined, Mr. Gatlin and Mr. Lambert said they would beat him up. Later, Mr. Lambert hit and choked M.W. while Mr. Gatlin encouraged him, and Mr. Gatlin separately punched M.W. Still later, Mr. Lambert found M.W. hiding and punched him again. Finally, when M.W. was being driven home, Mr. Gatlin called M.W.’s cell phone and made a threat. The State charged the defendant with several counts of assault and one count of gang intimidation.

Held: On appeal, Mr. Gatlin argued there was not sufficient evidence to show a gang existed. The Court of Appeals disagreed. A gang consists of three or more people. Here, the 4 Block Crips were a subset of the Duce 47 Crips, which had more than 3 members, so there was sufficient evidence Mr. Gatlin acted as part of a gang.

Gang intimidation and second degree assault do not constitute the same offense for purposes of double jeopardy.

The bill of particulars, which alleged Mr. Gatlin was a member of the 4 Block Crips but not the Duce 47 Crips did not deny Mr. Gatlin due process because he was aware of what the State sought to prove.

Search /Seizure: Where the record is not adequate to show why police searched a defendant’s car, the Court of Appeals will not review a claim that police wrongfully searched the car incident to arrest.

State v. Roberts,___ Wn.App.___ (Div. I) (Oct.25, 2010)

Facts: Police arrested Mr. Roberts for DWLS and towed his car. Police searched his car, but it was unclear whether the search was primarily incident to arrest or an inventory search prior to towing the car. Because Mr. Roberts went to trial prior to the U.S. Supreme Court opinion in Gant, he did not challenge the search of his car at the trial level.

Held: The record was inadequate to evaluate Mr. Roberts’ claim that police searched his car incident to arrest.

Search /Seizure: An officer does not seize an individual when the officer makes a permissive request that falls short of immobilizing the individual.

Show Up ID: A show up ID is not impermissibly suggestive because the person identified is in handcuffs.

Crawford: There is no right to confrontation under Crawford at a pre-trial hearing.

State v. Fortun-Cebada,___ Wn.App.___ (Div. I) (Oct.25, 2010)

Facts: Police officers saw what appeared to be a drug deal with Mr. Fortun-Cebada selling drugs to Mr. Walker, but the officers were not able to see what was exchanged. Shortly thereafter, police found Mr. Walker, asked if they could talk to him and asked him to take his hands out of his sweatshirt pocket. Mr. Walker complied and eventually told police he could identify the man who sold him cocaine. Police then held a show up identification, and Mr. Walker identified Mr. Fortun-Cebada.

Held: On appeal, Mr. Fortun-Cebada argued his trial counsel was ineffective for failing to move to suppress on the grounds that police unlawfully seized Mr. Walker and that Mr. Walker’s identification of Mr. Fortun-Cebada was unreliable. The Court of Appeals disagreed. He court held that Mr. Walker was not seized when police asked him to remove his hands from his sweatshirt pocket. Assuming Mr. Fortun-Cebada had standing to challenge the police contact with Mr. Walker, there was no seizure to challenge, only a permissible social contact because the officers’ request did not immobilize Mr. Walker.

The fact that Mr. Fortun-Cebada was in handcuffs when Mr. Walker identified him did not make the show up ID impermissibly suggestive.

There is no right to confrontation at a pre-trial 3.6 hearing under Crawford, so it was not ineffective assistance of counsel for the trial attorney not to object to the admission of Mr. Walker’s statements at Mr. Fortun-Cebada’s 3.6 hearing.


Corpus Delicti: A child’s allegation that the defendant molested her plus an adult’s testimony that the defendant admitted to the molestation provide corroborative independent evidence of corpus delicti.

State v. Grogan,___ Wn.App.___ (Div. III) (Oct.28, 2010)

Facts: Six-year-old M.L. told an adult that Mr. Grogan had touched her vagina. M.L. died before Mr. Grogan’s trial on first degree child molestation. Mr. Grogan later made incriminating statements to the police and told another adult, Mr. Bowyer, that he had inappropriately touched M.L.

Held: M.L.’s statement and Mr. Bowyer’s testimony provided corroborative independent evidence of the corpus delicti of first degree child molestation, thus allowing admission of Mr. Grogan’s statements to police.