Washington Case Law Ipdates August 9 - 20, 2010

SUPREME COURT

Criminal Mistreatment: Child and Dependant are Not Mutually Exclusive Terms

State v. Mitchell, ___ Wn.2d ___ (Aug. 12, 2010)

Facts: The defendant was convicted of criminal mistreatment for the abuse and neglect of a four year old boy.

Held: The State established beyond a reasonable doubt all of the essential elements of the crime. The terms child and dependent are not mutually exclusive for purposes of establishing whether “people who assume responsibility to provide the basic necessities of life for a dependent person” can be found guilty of criminal mistreatment when the victim is a child.

Persistent Offender: Verdict Finding of Firearm Facially Valid in Determining whether the Defendant Was Armed with a Deadly Weapon

In re Cruze, __ Wn.2d ___ (Aug 12, 2010)

Facts: The defendant was sentenced to life in prison as a persistent offender. Several years after the one year time limit to appeal had passed, he filed a PRP and challenged the second strike conviction, a 1996 drug conviction with a special verdict finding that he was armed with a firearm at the time of the drug crime. In the PRP, he argued that the 1996 conviction was facially invalid and should not qualify as a “most serious offense.”

Held: A deadly weapon verdict is any verdict or finding made in compliance with the procedures of former RCW 9.94A.125 that determines that the defendant used an item that former RCW 9.94A.125 defined as a deadly weapon. Where state established that the defendant was armed with a firearm, and not specifically a deadly weapon, the conviction is facially valid and the one-year time bar applies.


Search/Seizure: Gant Still Applies; No Good Faith Exception for Police

State v Adams, __ Wn.2d ___ (Aug 19, 2010)

Facts: The defendant was arrested on a warrant and his vehicle was searched incident to arrest, yielding drugs. Here, the defendant was not in reaching distance of the passenger compartment at the time of the search, there was no officer safety concern and no need to secure evidence of the crime of arrest. The State argued good faith exception should apply.

Held: There is no good faith exception to the exclusionary rule under the Washington Constitution.


Double Jeopardy: Violated when court explicitly holds vacated less conviction alive for reinstatement should the more serious conviction for the same criminal conduct fail on appeal.

State v. Turner, __ Wn.2d ___ (Aug 19, 2010)

Facts: Two separate defendants were convicted of multiple crimes. Based on double jeopardy some lesser crimes were vacated at sentencing but conditionally. The trial courts issued order stating that if the greater convictions were overturned on appeal, the convictions of the vacated crimes could be reinstated.

Held: In some circumstances that a lesser conviction previously vacated may be revived following appellate reversal of the more serious conviction, but explicit conditional vacation of a lesser conviction violates double jeopardy. The court may not state orally, or include in the judgment and sentence, any reference to the vacated conviction, nor can the court make reference to the vacated conviction at sentencing.


WASHINGTON COURT OF APPEALS


Sentencing/Crime Against Law Enforcement Officer: Sufficient evidence supports the aggravating circumstance that the defendant committed the crime against a law enforcement officer.

Search/Seizure: an unlawful seizure by police does not justify shooting at the police officer when only faced with loss of freedom. A person may only use reasonable and proportional force to resist injury from an officer.

State v Mann, ___ Wn.App.___ (Div. III) (No. 27317-2-III) (Aug.12, 2010)

Facts: The defendant was a passenger in a vehicle stopped for a traffic infraction. He ran from the scene, fleeing after the patrol officer instructed him to stop. Police followed his footprints and found him. Gunfire was exchanged and he was arrested. He was charged with and convicted of assault 1, and other weapons and drug charges, and the aggravator of committing the offense against a law enforcement officer. He received an exceptional sentence of 48 months above the standard range. The defendant challenged the seizure for the first time on appeal.

Held: There was sufficient evidence to show the defendant knew that the victim was a law enforcement officer. The defendant testified that he thought it was the police that found him and told him to surrender, but denied shooting intentionally. Forensic evidence contradicted the defendant’s version of an accidental shooting.

The seizure was unlawful, but that did not excuse the defendant’s conduct of shooting at the officer. A person can use reasonable and proportional force to resist injury from an officer during an arrest but not when faced only with loss of freedom.


71.09: evidence that a respondent may be eligible for the CPP program is not admissible in 71.09 proceeding unless the option would certainly exist upon unconditional release.

In Re Mulkins, ___ Wn.App. ___ (Div I)(No. 63222-1-I)(Aug. 9, 2010)

Facts: The respondent had two prior convictions for child molestation, one juvenile and one adult. Prior to his release from prison on the adult matter, the State filed a 71.09 petition. While serving his sentence, he received a letter from DSHS indicating he might be eligible for a voluntary program of supervision (CPP). He sought to introduce the letter at trial but the court denied it.

Held: A respondent in a 71.09 proceeding is not entitled to present evidence that he is eligible to participate in the CPP program unless the evidence establishes the option would in fact exist for him upon his unconditional release from detention. The letter only indicated he might qualify, not that he had been accepted. The trial court properly refused to allow the letter into evidence.

71.09: A jury demand made after a 71.09 case has been set for trial is generally too late.

71.09: First degree statutory rape is a automatically “crime of sexual violence.”

In Re Coppin, ___ Wn.App.___ (Div I)(No. 64963-9)(Aug 16, 2010)

Facts: The State sought to have Mr. Coppin civilly committed under RCW 71.09. Six days prior to trial Mr. Coppin waived his right to a jury trial. On the first morning of trial he requested a jury trial.

Held: The trial court did not abuse its discretion when it denied Mr. Coppin a jury trial on the first morning of trial. A jury demand made after a 71.09 case has been set for trial is generally too late.

In order to have a person civilly committed under RCW 71.09, the State must show the person has been convicted of or charged with a crime of sexual violence. Here, first degree statutory rape is automatically “crime of sexual violence,” and the State need not specifically show the crime involved violence.

Felony DUI: Whether a prior offense meets the statutory definition of 46.61.5055(13) is not an element of the crime. It is a threshold question of law for the court to determine admissibility of the prior offense at trial.

State v. Chambers, ___ Wn.App.___ (Div I)(No. 61857-1)(Aug 16, 2010)

Facts: The defendant was charged and convicted of felony DUI. Her prior offenses included three Washington convictions and a California conviction. The defense requested a bifurcated trial, which the court denied, then argued that the jury had to find the out of state prior met the definition of prior offense.

Held: The validity of a prior conviction is a question of law and a threshold question of admissibility for the court to decide, but the fact that the defendant has prior convictions that elevate a crime to a felony is a essential element that he State must prove to the jury beyond a reasonable doubt.

Duress Defense: Prior criminal association with others which recklessly contributes to the circumstances of duress is an exception to the defense.

State v. Healy, ___ Wn.App.___ (Div I)(No. 62994-8)(Aug 16, 2010)

Facts: The defendant was tried for burglarizing model homes. He testified that he was forced to commit the crimes by two former associates who threatened him and his 82 year old mother. The jury was instructed on the defense of duress, including optional language explaining that the defense is not available if the defendant recklessly puts himself in a situation likely to result in duress.

Held: Here, the court properly allowed the language in the instruction on the recklessness exception. The defendant testified that he had previously been criminally involved with the associates who forced him to commit these crimes and he failed to avail himself of several non-criminal options when he was threatened.

Prosecutorial Misconduct: A prosecutor may comment on a witness’ veracity as long as the prosecutor does not express a personal opinion and the comments are not intended to incite the passions of the jury.

Sentencing: Because the free crimes aggravator falls into the prior conviction exception to Blakely, notice is not required before the State seeks an exceptional sentence under that aggravator.

State v. Edvalds, ___ Wn.App.___ (Div I)(No. 64953-1)(Aug 16, 2010)

Facts: The defendant was convicted of burglary, theft and possession of drugs. On appeal he alleged prosecutorial misconduct. During trial the prosecutor questioned the defendant’s credibility. He also mentioned surveillance despite an order in limine that the parties not use the term surveillance.

Held: Regarding the comments on the defendant’s credibility, the defendant failed to show on appeal that the comments were improper or created prejudice. A prosecutor may comment on a witness’ veracity as long as the prosecutor does not express a personal opinion and the comments are not intended to incite the passions of the jury. Regarding the mention of surveillance, the prosecutor did his best to abide by the court’s order in limine while having an officer identify the defendant.

After trial but prior to sentencing, the defendant pleaded guilty to several new felonies. The State sought an exceptional sentence on the charges the defendant had taken to trial under the free crimes provision of the SRA. On appeal, the defendant argued the State’s failure to give him notice that it would be seeking an exceptional sentence meant the court could not impose an exceptional sentence. The Court of Appeals disagreed, holding the because the free crimes aggravator falls into the prior conviction exception to Blakely, notice is not required before the State seeks an exceptional sentence under that aggravator.


Indecent Exposure: A witness does not need to observe exposed genitalia to prove the crime of indecent exposure.

Sentencing/Sexual Motivation/404b: The aggravator may be proven by prior convictions if they establish a sexually motivated pattern of behavior.

Double Jeopardy/Unit of Prosecution: The unit of prosecution for indecent exposure is per exposure, not per witness, even if exposure to witnesses is separated by time.

State v. Vars, ___ Wn.App.___ (Div I)(No. 64963-9)(Aug 16, 2010)

Facts: The defendant was charged and convicted of two counts of indecent exposure with sexual motivation for roaming the streets of a Kirkland neighborhood in the early morning hours naked. Two witnesses saw him but did not see his genitalia. On appeal he challenged the sufficiency of the evidence on the underlying crime as well as the aggravator. The trial court allowed in evidence of 3 of the defendant’s 8 similar priors to establish proof of the aggravator.

Held: A witness need not see the offender’s exposed genitalia to establish proof of the underlying crime. If an obscene exposure takes place when another is present, and the offender knew the exposure likely would cause reasonable alarm the offender has committed the crime. Here there was sufficient evidence of the sexual motivation aggravator. The common elements of the prior similar offenses permit the reasonable inference that the conduct was sexually motivated.

Sealed Records: Redacted indigent defense billing records of a closed criminal case may be accessed by the media under GR 15.

State v. Mendez, ___ Wn.App.___ (Div I)(No. 27535-3)(Aug 19, 2010)

Facts: The defendant was charged with Aggravated Murder in Yakima County and the State filed a death penalty notice. The court appointed death penalty qualified attorneys. A “budget judge” that was separate from the trial judge was appointed to address costs and attorney fees. Defense counsel sought an obtained an order sealing the billing records and related documents. After the case resolved, the Yakima Herald sought the billing records under the Public Records Act. The trial court denied the motion. The paper appealed then later moved to intervene, arguing that the records could be unsealed under GR 15 (e)(2) since the case was final. The trial court granted the motion to unseal the documents subject to redactions to protect privileged communications and attorney work product.

Held: The newspaper has standing to intervene to unseal the records, and the court did not err when allowing access to unprivileged materials.

Supreme Court Opinions, August 26, 2010

State v. Bunker, No Contact Orders

Former RCW 26.50.110 criminalizes all no-contact order violations and is not limited to contacts with the protected party that are violent, threaten violence or occur in a specifically prohibited place.

State v. Kintz, Stalking

Trial court's interpretation of "separate occasions" upheld where the the acts were "dinstinct, individual, noncontinuance occurence or incident", but not necessarily separated in time. In both incidents, defendant's conduct occurred over a very short period of time.

State v. Meneses, Telephone Harassment (Mens Rea); Double Jeopardy

Telephone Harassment requires that the jury find that the defendant form the intent to harass at the time the call is "made".

Convictions for telephone harassment and intimidating a witness may not violate the double jeopardy protection against multiple punishments for the same offense.

These and all other cases from the last ninety days can be found here:
http://www.courts.wa.gov/opinions/?fa=opinions.recent