Washington State Criminal Case Law Update

By: Dena Alo-Colbeck

The following cases of note were decided recently in Washington's high courts:

Supreme Court:

State v. Nguyen: Reasoning that there is no requirement under Washington law that an offense carry a lesser potential penalty than the charged crime in order to be considered an included offense for which a defendant may be convicted even if not charged, the Supreme Court affirmed that physical control is in fact an included offense of DUI. A copy of the decision may be found online at: http://www.courts.wa.gov/opinions/pdf/807523.opn.pdf

Division One Court of Appeals:

State v. Lee: The Court affirmed Mr. Lee's conviction for possession of cocaine, holding that the totality of the circumstances supported a finding that the arresting officers had a reasonable and articulable suspicion that the defendant possessed narcotics, based on an informant's statement and observations of one of the officers, and the initiation of a Terry stop was lawful at that point. The Court declined to apply the Aguilar-Spinelli test to the case with regard to the reliability and accuracy of the informant, noting that courts have long applied the totality of the circumstances test to Terry stops rather than the Aguilar-Spinelli test. The Court cited U.S. Supreme Court precedent finding that reasonable suspicion to support a Terry stop may arise from information that is less reliable than that required to establish probable cause. While there must be some indicia of reliability in the informant's tip, the Court explained that, in a totality of the circumstances test, this is but one factor to be considered by the officer, and can be weighed in light of the officer's own observations, his experience in similar situations, and the nature of the crime alleged. The Court conceded that the Aguilar-Spinelli test continues to be the proper test to be applied with regard to informant reliability with regard to search warrants, but noted that such warrants are held to a higher standard than an investigatory stop. A copy of the decision may be found online at: http://www.courts.wa.gov/opinions/pdf/60669-7.pub.doc.pdf

State v. Osman: The Court reversed a superior court determination finding that a missing portion of a district court record was significant and material, finding that RALJ 5.4, which allows the district court to determine whether the missing portion of the record is significant and material, also provides for review under an abuse of discretion standard, not the de novo standard applied by the Superior court. The Court further found that the district court did not abuse its discretion in finding that the missing portion of the tape was not significant or material, and that the missing portion of the tape wsa not necessarily violative of due process until the defendant could demonstrate prejudice thereby. A copy of the decision may be found online at: http://www.courts.wa.gov/opinions/pdf/60359-1.pub.doc.pdf

State v. Alphonse: The Court upheld the defendant's conviction for telephone harassment, finding that the "to convict" instruction, even if erroneous, could not be a basis for overturning the conviction as it had been proposed by the defendant. The Court further found that even with the correct instruction there would have been ample evidence to convict Mr. Alphonse. The Court rejected the defendant's assertion that the calls to a police officer were protected First Amendment speech because they were made as a lawful petition to a government official for redress of grievences, holding that once Mr. Alphonse turned to speech that was designed to harass, intimidate, or embarass the officer, the speech was removed from First Amendment protection and became criminal. The Court further rejected a challenge to the statute itself, finding that the requirement that the speaker form an intent to harass, coupled with the requirement that the speech itself be lew or profane or threatening sufficiently narrowed the harassing speech, and finding that the statute was not vague as it sufficiently described the prohibited speech, and the defendant had not demonstrated that the statute might be arbitrarily or selectively enforced. Finally, the Court did vacate a banishment order prohibiting the defendant from entering the City of Everett that had been imposed as part of the sentence, finding that less restricitive means were available to protect the victims, the restriction was unrelated to rehabilitation, and the order did not allow the defendant to petition to lift the restriction. A copy of the decision may be found online at: http://www.courts.wa.gov/opinions/pdf/58449-9.pub.doc.pdf

State v. Johnson: The trial court had dated Mr. Johnson's certificate of discharge effective as of the date of the defendant's petition for such certificate, rather than making the certificate effective as of the date that Mr. Johnson completed the terms of his sentence. The Court of Appeals remanded for further findings of fact to determine the date the court was notified that Mr. Johnson had completed the terms of his sentence, holding that this date would be the appropriate date for the certificate. A copy of the decision ay be found online at: http://www.courts.wa.gov/opinions/pdf/61311-1.pub.doc.pdf

State v. Linerud aka Cain: The Court held that when the trial court did not make an initial determination of the length of the defendant's sentence and required the DOC to calculate the defendant's time served to ensure that it did not exceed the statutory maximum, such action rendered the sentence indeterminate and in violation of the SRA. A copy of the decision may be viewed online at: http://www.courts.wa.gov/opinions/pdf/60769-3.pub.doc.pdf

State v. Larkins: The Court found that the defendant's Ohio burglary conviction, which rested on his intent to commit a misdemeanor, which category included crimes other than those against persons or property, was not equivalent to a burglary conviction under Washington law, because such conviction would require intent to commit a crime against a person or property only. Thus the matter was remanded for resentencing, with the Ohio conviction to be removed from the defendant's offender score. A copy of the decision may be viewed online at: http://www.courts.wa.gov/opinions/pdf/59559-8.pub.doc.pdf

State v. Berg: The Court vacated one conviction of third degree child molestation, finding that the jury was not properly instructed that they must find a separate and distinct act for each identically charged molestation count and the defendant was therefore subjected to double jeopardy. The Court did uphold the remainder of the convictions against the defendant, finding no error in a detective's testimony about other abuse investigations, as the defendant opened the door to that testimony. The Court further remanded for resentencing, finding that the defendant's sentence exceeded the statutory maximum for the crime charged. It upheld, however, a sentencing condition restricting contact with the defendant's biological daughter as a necessary prohibition to protect the child from similar abuse. A copy of the decision may be found online at: http://www.courts.wa.gov/opinions/pdf/60729-4.pub.doc.pdf


Divison Two Court of Appeals:

State v. S.A.W.: The defendant's conviction was reversed and the case remanded for a new hearing due to the juvenile court's failure to conduct an independent assessment, through a CrR 3.5 hearing, of the credibility and voluntariness and, consequently, the admissibility, of the defendant's post-arrest oral incriminating statement, instead basing the admissibility of the statement solely on the trial testimony of one of the investigating officers. The Court heard the case despite the defendant's failure to request a 3.5 hearing prior to trial and his failure to object to the trial court not holding such a hearing, finding that the juvenile court based its adjudication on the defendant's testimony and thus the appeal raised a consittutional issue, because the defendant had the right to "have the voluntariness of an incriminating statement assessed prior to its admission." A copy of this decision may be viewed online at: http://www.courts.wa.gov/opinions/pdf/36336-4.08.cor.doc.pdf

State v. Harris: The Court affirmed the trial court's calculation of the defendant's offender score, finding that the State proved his prior Louisiana convictions by a preponderance of the evidence through production of packets of documents for each offense including a felony bill of information, a page containing a stamp with specific language, the defendant's fingerprints, and a signature, and an extract of the court minutes for the trial court judge's oral sentencing ruling. Though the documents were did not include certified copies of the judgment and sentence, the Court found the documents provided sufficient to establish the prior convictions when the State on appeal was able to cite a Louisiana statute defining how that state documents a judgment, in essence, that it utilizes the very documents provided by the state at the sentencing hearing. A copy of the decision may be viewed online at: http://www.courts.wa.gov/opinions/pdf/36725-4.08.doc.pdf

State v. Morgensen: The Court found no error in the trial court's decision to allow the jury to review the audiotape of the witnesses' trial testimony in its entirety during deliberations, holding that the trial court had carefully reviewed the Koontz factors in making that decision. The Court further found that the defendant failed to timely object to having his previous defense counsel preside over his current trial, and thus waived that objection. A copy of the decision may be viewed online at: http://www.courts.wa.gov/opinions/pdf/36853-6.08.doc.pdf