Case Law Updates Dec. 27, 2010-Jan. 7, 2011

WASHINGTON STATE SUPREME COURT

Bail Jump: Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of a the time of the failure to appear.
State v. Council, ___ Wn.2d___ (No 83654-0)(Dec. 30, 2010)

Facts: Mr. Council was charged with felony harassment when he failed to appear for a pre-trial hearing. He was arrested 4 months later, and the State added a charges of bail jumping and malicious harassment. The bail jumping charge was severed for trial. He was found not guilty of felony harassment and malicious harassment but convicted of misdemeanor harassment. A second jury subsequently found him guilty of bail jumping. The trial court classified the bail jumping as a class C felony because he failed to appear at a time when he was charged with a felony. On appeal he argued the bail jump statute was ambiguous.

Held: The statue is not ambiguous. Classification of bail jump is the same as the offense the defendant is held for, charged with, or convicted of.

Assault 3/Sufficiency: The floor is not an instrument or thing likely to produce bodily harm for purpose of the assault 3 statute when not used proactively to injure the victim.

State v. Marohl___ Wn.2d___ (No 83570-5)(Dec. 30, 2010)

Facts: Mr. Marohl was charged with Assault 2 and in the alternative Assault 3, stemming from a fight in a bar. Mr. Marohl put another patron, Mr. Peterson, in a choke hold, and either took him to the ground or Mr. Peterson fell. Mr. Peterson lost consciousness and his prosthetic arm broke off at the elbow. The prosecutor argued that the floor was “an instrument or thing likely to produce bodily harm” for purpose of the assault 3 statute. Mr. Marohl was convicted of assault 3 and appealed arguing that there was insufficient evidence that he used an instrument or a thing when he caused bodily harm.

Held: Where a defendant causes a victim to impact the floor, but does not proactively use the floor to injure the victim, the defendant has not used the floor like a weapon. The floor, under the circumstances of this case, is not included within the meaning of “instrument or thing” because it was not likely to produce harm and was not used like a weapon.

Death Penalty: Solitary Confinement at the IMU does not violate ex post facto. Good behavior by death row inmate does not create a liberty interest in a special housing unit or the attendant privileges.

In Re PRP of Gentry, ___ Wn.2d___ (No 84039-3)(Dec. 30, 2010)

Facts: Mr. Gentry was convicted of aggravated murder and sentenced to death in 1991. He resides at the Intensive Management Unit (IMU) of the Washington State Penitentiary. He challenged his conditions of confinement, claiming that solitary confinement violates ex post facto prohibitions. Death row inmates spend the first 12 months at the IMU. With good behavior, they were able to earn privileges and move to the special housing unit (SHU). Mr. Gentry had been housed in the SHU, enjoying additional privileges. In December 2008, due to state budget constraints, he was transferred back to the IMU where he was confined to his cell 23 hours a day and denied the privileges he had earned the SHU.

Held: Solitary confinement was contemplated by state law at the time of Mr. Gentry’s crime, thus there is no ex post facto violation. DOC has been given broad discretion over conditions of inmate housing. Participation in a good behavior program does not create a liberty interest in special housing and related privileges.

WASHINGTON STATE COURT OF APPEALS

Sex crimes: Statements to sexual deviancy therapist are not privileged when they concern allegations of child sexual abuse.

State v. Hyder, ___Wn.App. ___ (No 37267-3)(Jan. 4, 2011)

Facts: Mr. Hyder was charged with multiple counts of child rape and child molestation involving two of his daughters. Prior to charging, he sought treatment from a sexual deviancy therapist. After Mr. Hyder was charged and prior to trial the attorneys agreed to review the CPS records, rather than have the court review them in camera. In the review of the records, they discovered a report by his therapist to CPS containing Mr. Hyder’s admissions regarding the sexual abuse. Police served a search warrant on the therapist for all the treatment records. The therapist and her forensic evaluator were called as witnesses at Mr. Hyder’s trial. Mr. Hyder’s moved in limine to prohibit their testimony, but was denied. On appeal, he asserted that the State’s use of a search warrant was improper since there are other procedures for seeking medical records which require notice to a patient in advance. Mr. Hyder also asserted that the records should have been reviewed in camera by the court, rather than the attorneys.

Held: The trial court did not abuse its discretion when it permitted the therapist to testify concerning Hyder’s admissions of abuse. The mandatory reporting laws trump the therapist patient privilege. The State’s use of a search warrant to obtain the medical records was not an abuse of process. The appellate court noted that although the attorneys agreed to review the records, they should have been viewed in camera by the court. The error was invited error and as such the issue was waived by Mr. Hyder.

Wildlife Trafficking: RCW 77.15.260 does not permit value aggregation of pieces of contraband.

State v. Yon, ___Wn.App. ___ (No 28774-2)(Dec 28, 2010)

Facts: Mr. Yon was charged with and convicted of wildlife trafficking in the first degree for purchasing four black bear gall bladders for $200.00 each. RCW 77.15.260 defines first degree wildlife trafficking as a C felony, and requires the value of the trafficked goods to exceed $250.00. Wildlife trafficking in the second degree is a misdemeanor. RCW 77.15.030 says that trafficking of big game, each big game animal should be charged as a separate offense. Mr. Yon argued it was improper to aggregate the value of the bear gall bladders to satisfy the elements of first degree wildlife trafficking.

Held: The statute intends for each piece of contraband to be charged separately and does not permit aggregation of value of pieces of contraband.

RALJ Appeal: The Superior Court exceeds the scope of review when it considers an issue not raised at the trial level.

State v. Rosalez___Wn.App. ___ (No 28253-8)(Dec 28, 2010)

Facts: Mr. Rosalez was charged and convicted of DUI. At his trial, he moved to suppress the breath test, based on the irregularities and false certifications in the crime lab during the tenure of Ann Marie Gordon. He argued due process violation, improper foundation, and challenged the evidence under ER 702 and 703. Mr. Rosalez did not expressly move to suppress the breath test under ER 403.

The trial court admitted the breath test, holding that the crime lab irregularities went to the weight of the evidence and not the admissibility. He was convicted at trial and appealed to Superior Court. The Superior Court reversed, holding that the breath test should have been suppressed, based on a due process violation of the right to a fair trial and on the failure to follow the protocols of RCW 46.61.506. The Superior Court also found that the trial court erred when it did not exercise discretion under ER 403, by failing to weigh the prejudicial value of the misconduct against the probative value of the breath test. The appellate court limited review in this case to whether the Superior Court exceeded the scope of review by considering the ER 403 issue.

Held: The Superior Court exceeded the scope of review when it held that the trial court erred for failure to exercise discretion ER 403, which was not argued at the trial level.