ADVANCE SHEET SUMMARIES For October 2012 cases

Prepared by Mark W. Muenster

SUPREME COURT CASES

PRP of Glassman, NO. 84475-5

Prosecution for kidnapping, assault, robbery and obstructing.
Court’s factual summary does not leave the reader gushing with sympathy for the petitioner here, but notes that he was beaten by the police during the course of his apprehension. The booking photo which documented this injury was used by the prosecutor in a Power Point slide show during closing, and the prosecutor superimposed the word “guilty” three times across the face of the accused. No objection at trial to the PowerPoint, and conviction affirmed on direct appeal, unpublished.

The PRP presents the graphics of the argument, and allows petitioner to overcome the higher standard for prosecutor misconduct when no objection was made. The lead opinion equates the use of the superimposed graphics as an improper expression of the prosecutor’s opinion, and offering “evidence” that was not offered at trial. This overcomes the prosecutor’s argument in the PRP that he was merely making argument and using an exhibit to make his point.

It is important to the decision that the defense was the case was overcharged, and Glassman was guilty only of lesser offenses. The verdicts reflected that, except for the Kidnapping 1.

The best part:

“Thus, deciding whether reversal is required is not a matter of whether there is
sufficient evidence to justify upholding the verdicts. Rather, the question is whether there is a substantial likelihood that the instances of misconduct affected the jury’s verdict. Dhaliwal, 150 Wn.2d at 578. We do not decide whether reversal is required by deciding whether, in our view, the evidence is sufficient.”

There is also useful dicta on the other issue, whether the prosecutor misstated the burden of proof:

“However, it was clearly misconduct for the prosecutor to inform the jury that acquittal was only appropriate if the jury believed Glasman, and shows the prosecutor’s failure to prosecute this case as an impartial officer of the court.”

State v. Deer, decided October 25, No. 85511-1

“Sleep sex” case

Deer had argued that she was asleep during some of the sex acts she was accused of performing with an underage boy.
Court holds that the defense of being asleep during sex with an underage partner is like “unwitting possession” in a drug case, and the defendant has the burden of proof. This reverses a Court of Appeals decision holding that the state had to disprove “unconsciousness” during the act.

Justice Wiggins writes a blistering dissent, joined by former Chief Justice Alexander as pro tem.

State v. Sisouvanh, decided Oct. 18, NO. 85422-0

Prosecution for aggravated first degree murder. Appellant cut the baby out of a pregnant woman’s abdomen, and claimed it as her own. Insanity defense did not prevail at trial.

Issue:   Whether the Eastern State Hospital doctor was qualified to make a competency determination for a Laotian immigrant who came to the country at age 5?

Court holds that this an abuse of discretion level of review, and finds there was  no abuse of discretion. There is  strong overtone that the appellant was “malingering” while at Eastern, and that the cultural issues were not all that significant.
Opinion by Judge Gonzales.

State v. Louthan, No. 85608-7

This case , although per curiam, emphasizes the holding of State v. Snapp, 174 Wn.2d 177, 275 P.3d 289 (2012), that Art. I Sec. 7 gives more protection than Gant v. Arizona to searches incident to arrest. It is not enough to search that the police reasonably believe there is evidence of the crime for which they are arresting in the car. They must get a warrant.

COURT OF APPEALS CASES

State v. Maples, Division II, October 2,NO 41808-8-II

Issue:   Retroactivity of Community Placement conditions

Maples was resentenced in  2008 for a murder committed in 1988. He challenged two conditions:  that he have a residence preplacement condition, and a more general condition that he engage in affirmative conduct to insure compliance with placement. The court upholds the latter condition as based on legislation in 1997, but strikes down the former because the legislature tried to retroactively change the court’s restriction announced in the Capello, decision,  106 Wn. App. 576, 583-84, 24 P.3d 1074 (2001).

The panel strikes down the preplacement condition, based on the principle announced in In re Pers. Restraint of Stewart, 115 Wn. App. 319, 331, 75 P.3d 521 (2003).

State v. Jones, Division II, October 2, NO. 41886-0-II

Issues: comment on the evidence, failure to give a DOSA sentence

Prosecution for possession of a stolen vehicle. The “comment”  on the evidence argument is based on the court’s affirmative comment that the record would reflect the identification of the defendant after the police witness did just that. The court properly characterizes this as “meritless”, which makes you wonder why this case ends up being published.
Jones asked for DOSA, and the court did not give it, partly because he was apparently facing other charges. The panel notes the categorical refusal to consider DOSA could be error, but this was not a categorical refusal.

State v. Kipp, , Division II, October 2, NO. 39750-1-II

Issues:

  1. Admissibility of 404 (b) evidence under common scheme or plan exception in child rape case. the other evidence was acts of molestation of sister of the victim in the case being prosecuted.
    The court admits this under the “common scheme”  rubric from Lough and DeVincentis.
  2. Privacy act violation
    Court admits a tape made by victim’s father talking with defendant.
    Court holds this is not a “private” conversation, and therefore not barred by the statute after discussing the standard of review, which it holds requires deference to the trial court’s factual determinations. The  court says because the conversation took place in a kitchen , a common area of the house,  because it was a confession ( and therefore Kipp could not reasonably expect it would remain private), and because Kipp suggested they could revisit the discussion later, the conversation was not “private” and therefore not barred under 9.73.050.

Exclusion of defense witness
The witness was disclosed six days before trial, but his substance was only disclosed the first day of trial. The panel holds that it was not an abuse of discretion to exclude the witness, although that is not the usual remedy. The court relies partly on the fact that the witness was duplicative of or corroborative of, other witnesses regarding defendant’s access to the victims.
The test is from State v.Hutchinson, 135 Wn.2d 863, 882, 959 P.2d 1061 (1998).

State v. Coley, Division III, October 9, 2012 NO. 30003-0-III

Prosecution for child molestation. There were doubts about the defendant’s competency, and he made several trips to Eastern State. When he was returned, there was a controversy about whether he had regained competency. The court asked the parties to  brief whether the state or the defense had the burden of proof on competency. The trial court concluded the defendant had the burden to prove he was incompetent, and after that found he was competent. After a trial, and a mistrial, and a second trial Coley was convicted.

Issue:   who has the burden of proof on the issue of competency?

Court holds that once there has been a finding of incompetency (which there had been in this case) the burden shifts to the state to prove that the defendant has regained competency. Since the trial court made its determination using the wrong burden of proof, the error was “structural” and no harmless error analysis could be done. Reversed.

State v. MacDicken, Divison I, October 8 No. 67314-9-I

Prosecution for Robbery

Issue: How broad is your “wingspread”, or how big is the search incident to arrest exception?

Defendant and three others detained by the police in a parking lot for  robbery. Defendant is handcuffed and prone on the ground. There are four police on scene. Defendant, before arrest, had a laptop bag and duffle bag under his control. The police move both about a “car length” away, and then search them. Motion to suppress denied.

The court holds that the bag, a car length away, is still within the area that a handcuffed person might, just might, be able to reach to injure the officers, noting  in a footnote that four police were killed by people in handcuffs in 1991.
The guts of the decision:

Here, MacDicken could have possibly reached the bags to seize a weapon. The bags were not in Gillebo’s exclusive control, and officer safety was a substantial concern during MacDicken’s arrest, given the nature of his crime. Officers suspected MacDicken of committing a crime involving a firearm and considered him a “high-risk” arrestee because he was potentially armed. Additionally, the arrest occurred in a public area, and several people associated with MacDicken stood nearby. Although Detective Gillebo moved the bags some distance away from MacDicken, they were still within reaching distance. Therefore, their relocation did not eliminate the possibility of MacDicken accessing them. Neither did the fact that MacDicken was in handcuffs.

State v. Berube, Division One, October 9, NO. 63579-4-I

Prosecution for first   degree assault

Issues:
Prosecutorial misconduct:
Snitch code argument
Tailoring testimony
Duty to produce evidence
Speak the truth with your verdict.

Defense effort here is hampered by lack of objection to closing arguments, therefore the higher burden of flagrant misconduct applies. The panel says the snitch code argument here is not like the one the Supreme Court condemned in State v. Monday. The panel says the tailoring testimony argument is distinguishable from the rule in State v. Martin. The duty to produce evidence argument is weakened due to lack of objection, and no “missing witness” instruction request by the state.The court agrees the prosecutor’s “speak the truth with your verdict” argument was improper, but again finds no error because there was no objection, and the error was curable.

This case demonstrates that we all need a list of the favorite bad arguments made by prosecutors in closing, and that we need not be afraid to interrupt their closing when they make one the arguments the court has ruled as improper. If we don’t, it is harmless error time.

State v Havens, Division III, October 11, NO. 29967-8-III

Issue:

Extension of time for payment of legal financial obligations.

The statute provides a ten year time limit for crimes committed before 2000, with the proviso that the court can extend the time if it does so before the 10 years is up. The trigger date for the time limit is either the judgment and sentence, or release from custody on the case.

The state moved to extend the time more than 10 years after the judgment was entered, but arguably earlier than 10 years before Havens’ release on the case. Because the record did not really establish when the release date was, although it could be inferred  from the sentence itself, the court used the J and S date instead. The court also held that the time was not tolled because the statute had no tolling provision if a person was on warrant status.
The trial court order extending the LFOs is reversed.

State v. Morfin, Division III, motion to publish granted October 11, NO. 29727-6-III

Prosecution for first and second degree murder.

Issue:   did the court properly retain a juror whom the other jurors accused of failing to deliberate?

This case represents the flip side of State v. Elmore, 155 Wn.2d 758, 768-69,
123 P.3d 72 (2005).in which a juror was excused based on allegations that he was not deliberating. The trial judge here did not interview the juror in question, but did talk to the foreman, who said that the juror had not refused to vote, but just would not  talk about the issues.

Elmore requires the court, if the problem arises during deliberation, to ascertain if there is any reasonable possibility that the juror’s actions are based on his/her view of the sufficiency of the evidence. If so, the juror cannot be replaced. If not, the court should make only the inquiry necessary to assure itself that the juror can follow the court’s instructions, including the instruction to follow the law.

The trial court here did this, and its decision to retain the juror is upheld as not being an abuse of its discretion.

The motivation behind the State’s motion to publish seems to be to give judges a template to follow when a juror is not playing ball with the others.

State v. Moreno, Division Three, motion to publish granted Oct. 11.

Prosecution for assault in the first degree and unlawful possession of a firearm.

Moreno is  in a car stopped in an alley near where shots were just fired. Another occupant of the car is wearing red, the wrong colors for the neighborhood.

Issues:
Was initial stop justified?

According to the panel, the suspicion of gang activity, based on the red colored shirt of car occupant, and the recent firing of shots, and the speed of the car through the alley, justify the initial detention.

Was the arrest illegal?

The court finds it was an arrest to sequester Moreno in the the police car after they had already ascertained there were no weapons in the interior of the car he had been in, and he had previously been compliant with the detention.

Was the search warrant tainted by the illegal arrest?

There was no connection between the arrest, and the search warrant application, so the search of the trunk is upheld.

Exceptional sentence based on gang activity:

The court vacates the exceptional sentence, because the evidence linking the crime to gang advancement was too speculative, distinguishing Yarbrough and Monschke.

More Court of Appeals cases

State v. Ashenberner, Division One , October 15, 2012

Maybe this case should be “Crashandburner”

Prosecution for Theft in the first degree. Employee embezzles more than $100,000.

Issue:   Can the court clerk, in aid of restitution collection, order the defendant to provide proof of income and employment? (AND  can the court impose sanctions if she does not?)
Ashenburner does not cooperate with the clerk during restitution, and claims to be unemployed while actually, according to the clerk, working under three other social security numbers.

The court cites the statute, which gives the clerk the power to adjust the payment schedule and which obligates the defendant to give the information requested:
RCW 9.94A.760(7)(b) states:
During this reporting, the offender is required under oath to respond truthfully and honestly to all questions concerning earning capabilities and the location and nature of
all property or  financial assets. The offender shall bring all documents requested by the county clerk in order to prepare the collection schedule.

The court points to RCW 9.94B.040 as the authority for the sanction of jail.

State v. Macias, No. 41403-1-II decided October 16, 2012

Prosecution for various drug offenses. Only one issue merited publication.

Issue:   Can an objection be made for the first time on appeal to an improper “Castle” reasonable doubt instruction?

No objection  was made at trial, so this issue was raised for the first time on appeal.The court says that notwithstanding the fact that the Castle instruction was disapproved of in no uncertain terms, it is not constitutional error, and thus cannot be raised for the first time on appeal. The associated IAC claim is defeated, in the unpublished  part of the opinion, on the basis that Macias could not show there was a reasonable probability that the bad instruction affected the outcome.

State v. Witherspoon, No. 40772-8-II, decided October 16, 2012

Prosecution for first degree burglary, robbery, and witness tampering

Issues:

  1. Where the information charged three alternative means of witness tampering, and the jury was instructed on all three means, but the evidence only supported two, did  this violate the right to a unanimous jury verdict?
    The court says no, based on sufficient evidence of two of the charged alternatives, and the fact that the state did not argue the third. Thus there was no real possibility that the jury could convict on the unproven alternative, distinguishing, State v. Lobe, 140 Wn. App. 897, 905, 167 P.3d 627 (2007).
  2. Appearance of Fairness
    The trial judge thought he might have represented Witherspoon at an earlier point in the judge’s career as a defense lawyer. Witherspoon did not object at trial, or put on any evidence in the record to suggest  the judge had actually represented him. So the claim of appearance of fairness fails.
  3. IAC Claim (failure to request instruction on lesser, and potential conflict of interest)
    The lesser that might have been asked for here was theft in the first degree, since there was scant evidence of force to commit the robbery.The panel holds this is a tactical decision not to ask for Theft 1, and thus not ineffective, since it might have forced the jury to acquit on this count.
    What the court fails to note, is that Theft 1 would not have been a strike, and Robbery 2 was.
    The conflict issue apparently arose because Witherspoon’s lawyer had talked with Conklin, a defense witness and the one with whom Witherspoon was charged with tampering and because Witherspoon had asked his lawyer to get an investigator for the three strike portion of the case. The claim fails because there was not an  adequate showing of conflict or effect on the lawyer’s performance.
  4. Attack on the charging document
    Witherspoon argued that the information did not state the facts regarding what force was used. The court notes that the information tracked the statute, and was therefore constitutionally sufficient to give him notice.
  5. Corpus delicti
    Witherspoon argued that his statement to the complaining witness, “I have a gun”,  should have  been excluded because there was no corpus delicti. The court cites Division One and Three decisions that statements made before, or during the commission of a crime are part of the crime and not a  confession requiring corroboration.
  6. 8th Amendment and Fain claim regarding persistent offender sentence.
    This is a losing issue under State v. Rivers 129 Wn.2d 697, 921 P.2d 495 (1996), for  second degree robbery.
  7. Equal Protection argument
    In essence, why should some prior convictions be elements of the crime, and others merely aggravators of sentences?
    This type of challenge rejected in the other Divisions of Court of Appeals:
    State v. Langstead, 155 Wn. App. 448, 454-57, 228 P.3d 799, review denied, 170 Wn.2d 1009(2010); State v. Williams, 156 Wn. App. 482, 496-99, 234 P.3d 1174, review denied, 170 Wn.2d 1011 (2010).
  8. Whether existence of priors must be proven to a jury?
    Judge Hunt and Armstrong disagree with the “lead opinion” authored by Judge Quinn Brintnall on this point, and would not vacate the conviction based on Blakely/Southern Union.
  9. What level of proof is required for prior convictions?

The “lead” opinion would hold that due process requires the priors be proven beyond a reasonable doubt, as was the case with habitual offender cases like Holsworth, and felon in possession of firearm cases, both of which depend on proving recidivist status. The other panel members point out Quinn Britnall’s “position” on this issue has been decided against her by the Supreme Court in State v. Magers (Blakely does not apply to 3 strikes cases and  McKague (BOP is preponderance as to existence of priors.)

State v. Edwards, motion to publish granted Oct,. 23, No 41054-1-II

WACDL   appareantly submitted a motion to publish this opinion. After reading the decision, it is unclear why we did. The only published issue relates to whether the jury should have been instructed that “volition” was an element of the offense.

The discussion of the “volitional” requirement for a conviction for child molestation preceded the Supreme Court’s decision in Deer, (digested above), but the panel here rejects the Deer analogy anyway because the victim here testified that Edwards was not asleep, but awake, and he testified he was dreaming.
The panel says there was no evidence that this conduct was not “volitional”.

State v. Sanchez, NO. 26816-1-III,, decided October 30, 2012
Only part of this extremely long and detailed  decision is published.

Prosecution for aggravated murder.(no death penalty sought)

Issues: Disqualification of first appointed lawyers/counsel of choice

This issue arose because Sanchez’ first set of lawyers had interviewed the co–defendant, who later turned state’s witness, three times before  the witness had counsel appointed for him. Secondly, they moved three children who were potentially witnesses from Washington to California.

The panel opinion distinguishes between retained counsel of choice and appointed counsel, and rules there is no right to insist on a particular appointed counsel, and the  US Supreme Court precedent cited supports this position. Absent a constitutional right, the disqualification decision becomes reviewable only  as an abuse of discretion.

The first basis, that the interviews conducted made one of the lawyers an “unsworn witness” is discussed in detail and discarded, mostly because there was an investigator present who could be a potential impeaching witness other  than the lawyer. (PRACTICE TIP: Never interview a witness, especially a potentially hostile witness, alone)

The  second basis, the  semi-clandestine movement of the children  to California, did support the trial court’s disqualification ruling. The co–defendant’s lawyer was insisting on his right to call Sanchez’ lawyers regarding their motivation for moving the children from Washington.

Test for disqualification comes from Pub. Util. Dist. No. 1 of Klickitat County v. Int’l Ins. Co., 124 Wn.2d 789, 811-12, 881P.2d 1020 (1994) (PUD No. 1):

A motion for disqualification under RPC 3.7 must be supported by a showing that(1) the attorney will give evidence material to the determination of the issues being litigated, (2) the evidence is unobtainable elsewhere, and (3) the testimony is or may be prejudicial to the testifying attorney’s client.
The panel concludes that the three factors were implicated here, which provided a basis to uphold the trial court ruling.

The third basis, which the panel holds also justified the disqualification, was the possibility that the lawyers might be charged with witness tampering, although they never were.

2. Jailhouse courtroom trial

State v. Jaime, 168 Wn.2d 857, 233 P.3d 554 (2010), is distinguished on the basis that the court in Jaime did not do any real fact finding, whereas the record here had four witnesses who testified about various aspects of the need for security.  On the  deferential abuse of discretion standard, the decision here to utilize the jailhouse courtroom  stands up.

3. Eyewitness ID

The most recent US Supreme case on this topic, Perry v. New Hampshire, ___ U.S. ___, 132 S. Ct. 716, 723, 181 L. Ed. 2d 694 (2012) supports the panel decision that cross exam, not suppression , was adequate remedy for the in court ID issue.

The showing of suggestiveness was not sufficient to trigger due process protections and the subsequent Perry decision defeats the defense arguments, derived from Braithwaite that reliability is the linchpin, whether or not the police engaged in  suggestive procedures.

The other issues are non published.

State v. Embry, Morton and Parker, No. 40984-4-II, Decided October 30

Prosecution for attempted murder, assault 1 with firearm enhancements

Gang member shot outside Tacoma bar by other alleged gang members.

  1. Gang Evidence
    404 (b) evidence, court utilizes test from State v. Yarbrough, 151 Wn. App. 66, 81, 210 P.3d 1029 (2009). This is allowed here since the victim had been in a fight a month earlier with a member of a gang allied with the ones who shot him.
    Judge Armstrong’s dissent  is on this issue.
  2. Evidentiary issues
    Defendants objected to various parts of Detective Ringer’s testimony about the security video which showed some of the events leading up to, but not including the shooting, and about gang affiliations, but did not follow with motions to strike. Other arguably opinion testimony did not draw an objection and thus was not preserved for appeal.
  3. Sufficiency arguments
    Two of the co–defendants challenged their convictions for unlawful possession of a firearm, and the court agrees the evidence of either actual or constructive possession was not sufficient. Neither of these guys was identified as the shooter.
  4. Prosecutorial Misconduct
    “Code of the Street” comment is not as bad as the ones in Monday, therefore since defendants did not object, they are held to the higher standard of prejudice, which they do not meet.
    “Law enforcement did a great job”  as vouching was not preserved by an objection.
    Reference to defendants as “wolves” was not objected to, and not sufficiently flagrant to merit relief.