June 2017 Summaries 2

ADVANCE SHEET SUMMARIES FOR WACDL

Prepared by Mark W. Muenster

Published Cases from June 1-June 30, 2017

SUPREME COURT CASES

State v. Estes, No. 93143-7, decided June 8, 2017

Prosecution for second-degree assault while armed with a deadly weapon. The defendant, who already had two strikes, was acquitted on the second-degree assault charges. However, he was convicted on the lesser included charges of assault in the third degree, both with a deadly weapon enhancement. That converted the non-strike assault 3 into a strike offense. Defense counsel was seemingly unaware of the legal effect of the deadly weapon enhancement.

The Court of Appeals had held below that Estes received ineffective assistance of counsel, because counsel was unaware of the legal effect of the deadly weapon enhancement on the sentence, and because there was a reasonable probability that his obliviousness affected the outcome, not so much of the trial, but whether a plea offer to a non-strike offense was sought.

The state sought review. The Supreme Court affirms, indicating that there was enough record evidence to support the COA conclusion on both the deficient performance prong and the prejudice prong. The court rejects an argument that a PRP would be required to support the finding of deficient performance. The concurring opinion agrees there was deficient performance, but would find prejudice on a different basis, rooted not in the plea bargaining possibility but the tactics used at trial to defeat the deadly weapon enhancements in the first place.

State v. Lee, NO. 92479-9, decided June 15, 2017

Prosecution for multiple counts of third degree rape of a child.

Lee argued the trial court restricted cross-examination of the victim regarding a past false accusation of rape. He was only allowed to elicit that she had made a false accusation without specifying it had been regarding a sexual assault. The COA had found that the trial court abused its discretion in limiting cross-examination, but did not find it to be constitutional error and found it harmless under the non-constitutional error standard.

The Supreme Court applied a three part test from State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002) to determine whether the trial court unconstitutionally restricted cross-examination:

First, the evidence must be of at least minimal relevance. Second, if relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Finally, the State's interest to exclude prejudicial evidence must be balanced against the defendant's need for the information sought, and only if the State's interest outweighs the defendant's need can otherwise relevant information be withheld.

The 5-4 majority decision concludes that the evidence here was minimally relevant because the false complaint did not relate to Lee. Secondly, they conclude that the evidence was prejudicial to the "fact finding process" citing State v. Hudlow, a case involving the application of the rape shield statute. Finally they find that the state's compelling interest in encouraging victims to come forward outweighs the interest in cross-examination regarding a false rape accusation, again relying on Hudlow.

Lee also raised a constitutional speedy trial issue based on the four year gap between his initial arrest and the trial. This was not raised in the trial court, and the court declines to find manifest constitutional error to allow it to be litigated for the first time on appeal.

Finally the court reaches Lee's Blazina issue regarding costs, and grants relief.

The concurrence would have found constitutional error in the restriction on cross-examination, but that it was harmless beyond a reasonable doubt, mostly because of a very damaging letter Lee wrote to the complaining witness.

State v Whitlock and Johnson, No. 93685-4, decided June 15, 2017

Prosecution for robbery. In a bench trial, the court held an in-chambers conference regarding whether the defense could cross-examine a key witness about being a police informant. The issue was apparently not originally briefed in the Court of Appeals, but alerted to the existence of the issue by a pro se filing, the Court of Appeals called for additional briefing. The panel decided there was an open court violation due to the chambers conference, which the state tried to characterize as a "sidebar."

The Supreme Court affirms the reversal and remand for a new trial. The chambers conference was definitely a court closure, there was no Bone Club analysis done by the trial court to justify the closure, and the right to open court attached to the proceeding, which dealt with the factual issue of the informant, rather than a mundane matter that could be handled at a sidebar.

The fact that there was a memorialization after the fact of the chambers conference does not salvage it.

PRP of Lui, 92816-9, decided June 22, 2017

Prosecution for second-degree murder. This PRP was filed along with Lui's unsuccessful direct appeal, which had decided a Confrontation Clause claim. The PRP was stayed during the direct appeal process.

The COA denied all the claims made in the PRP, and the Supreme Court affirms.

The ineffective assistance of counsel claims center mostly on the handling of dog tracking evidence and some other tactical decisions. There were also claims of prosecutorial misconduct, a Brady issue and an "other perpetrator" issue.

The decision goes on for about 55 pages, so a detailed analysis of the court's refutation of all of the claims would take nearly as many.

The dissent argues that a reference hearing should have been held on some of the claims, especially those related to defense counsel's health during the trial.

Justice Gordon McCloud did not participate in the case.

City of Sunnyside v. Gonzales, NO. 93907-1 decided June 29, 2017

Forfeiture action by the city against a car and about $6,000 in cash.

The City won at the hearing examiner level, lost at the RALJ level in Superior Court, and won again in the Court of Appeals. The Supreme Court reverses.

Gonzales was arrested for driving while suspended after a stop for speeding. He asked to let his girlfriend come get his car. The police brought a dog, which alerted to a small amount of cocaine in the car, and to the cash which Gonzales had.

For whatever reason, the City chose not to pursue forfeiture against the car on the basis that it was a conveyance used to facilitate Gonzales' possession or was a container for it, or that a felony had been committed and the car was an instrumentality. See RCW 69.50.505 (c) and (d); RCW 10.105.010. Instead the City focused on the proceeds theory of forfeiture.

The court ultimately holds that there was not "substantial" evidence to support the hearing officer's conclusion that the property was forfeitable:

However, the City's burden was not merely to show that Gonzalez's property was connected to some illegal or untoward activity. It was required to prove, by a preponderance of the evidence, that Gonzalez's car and money were specifically connected to drug manufacturing, transactions, or distribution. The only preliminary finding that is supported by substantial evidence and relates in any way to controlled substances is the undisputed finding that cocaine was found in the car.

....

Allowing forfeiture under these circumstances would mean that a person's property may be subject to forfeiture if it is connected to possession of even a small amount of a controlled substance. The statute's plain language, however, targets the profits of drug manufacturers and distributors, not the property of end- level users who are guilty of nothing more than mere possession.

The court also grants Gonzales's request for fees as the prevailing party, as allowed by the statute, RCW 69.50.506.

COURT OF APPEALS CASES

State v. Munzenreder, No. 33328-1- III decided June 1, 2017

Prosecution for first-degree murder. The case involved extensive pretrial publicity. Appellant's two challenges in the published part of the decision involve whether the state constitutional jury trial right should be more protective than the 6th Amendment, and whether his motion for change of venue should have been granted.

The panel decision analyzes the jury selection process, most of which Appellant agreed to, and his use of peremptory strikes to remove jurors he had challenged for cause, but who had not been excused by the court. Appellant never asked for additional peremptory challenges. The court's Gunwall analysis convinces it that the state constitution has not been given a wider latitude in the jury selection process, and denies the challenge on that ground.

The motion for change of venue also fails. This is a discretionary ruling. While the court acknowledges the pervasive nature of the pretrial publicity, it concludes that the jury selection process whittled down the number of jurors who Munzenreder had unsuccessfully challenged to two, and he did not use his peremptories to excuse either. That, and the size of the available jury pool supported the decision that the motion for change of venue was properly denied.

The unpublished part of the decision provides the appellant his only relief in the form of a denial of costs to the state as prevailing party.

State v. Farnsworth, NO. 33673-5 III, decided June 1, 2017

Prosecution for theft in the first degree, three counts. The state aggregated 46 payments of worker's compensation that it claimed were unjustified into three first degree theft counts, dividing up the counts chronologically. Farnsworth received worker's compensation claims payments that required him to affirm he was not employed, when in fact he was. Farnsworth argued that the separate thefts could only be aggregated into one count. The court agrees and vacates one of his theft convictions. The jury had acquitted Farnsworth of one of the three counts.

Before reaching the aggregation issue, the court reject challenge based on Brady v Maryland concerning undisclosed misconduct by one of the state's investigator witnesses, and a Confrontation Clause challenge to some of the state's documentary evidence.

The court also rejects an argument that the trial court erred by excluding evidence that the worker's compensation claims would still have been paid in part even if Farnsworth had not lied about his current employment.

Turning to the aggregation issue, the court notes that at common law, there were no limits on aggregating counts. The statute, however, permits aggregation of third-degree thefts, but does not mention aggregation of second-degree thefts into first-degree theft. Here the state charged aggregation under the common scheme of plan prong of the statute. The court holds that choosing this method limits the state to the one count which constitutes the common scheme or plan.

The court also holds that failing to include common scheme or plan as an element of the offense in the "to convict" instructions was error, but harmless under the facts of the case.

There is a concurring opinion and dissent, both of which discuss the aggregation issue, and which will probably lessen the value of the case as precedent.

State v. Lyons, No. 47231-7-II, filed June 6, 2017

Prosecution for second-degree assault. Lyons was incompetent and there were two restoration orders entered. Neither provided for involuntary medication. Partway through the second period, Western State Hospital asked the prosecutor to obtain a Sell order for involuntary medication. The defense asked for a continuance to get its own expert regarding the particular type of medication and its efficacy for Lyons's particular mental illness. The trial court refused to continue the hearing, and signed the order for forced medication.

Ironically, it did not help restore Lyons to competency and his case was ultimately dismissed. The case does not discuss mootness, and the panel reaches the merits.

The panel holds that a detained person has a due process right to present expert testimony in a Sell hearing regarding the appropriateness and efficacy of the medication the hospital is trying to force on the unwilling patient/defendant.

John Does v. Zink, 48000-0-I, decided June 20, 2017

This is not a criminal law case per se, but would be of interest to members who advise clients on the duty to register.

Zink filed PDA requests to get information about sex offenders who had to register in Thurston County, repeating her actions in other counties. The county notified the affected individuals, and they sued and sought an injunction prohibiting some of the disclosures sought by Zink.

The COA panel upholds the trial court decision to allow suit under a pseudonym, allows the certification as a class action, and upholds the injunction against the release of unredacted Level I sex offender records.

State v. Kocher, 74775-4-I, decided June 26, 2017

Prosecution for DUI.

The accused driver is stopped for driving with a wheel off the roadway, i.e. a lane travel violation on the fog line at the edge of the road. The shoulder is not considered part of the roadway by statute, so a car that goes on it, even briefly, violates RCW 46.61.670.

This case drives the last nail in the coffin to State v. Prado, the lane travel case which favorably construed RCW 46.61.140. Troopers will now use the "off the roadway" basis for all lane travel violations on the edge of the road.

The trial court had granted a motion to suppress based on Prado, and was reversed by the RALJ court. Kocher asked for discretionary review, and loses in the COA, which holds that the stop was justified by the "wheels off the roadway" statute, RCW 46.61.670.

State v. Linville, No. 47916-8-II, decided June 27, 2017

Prosecution for leading organized crime, burglary of varying degrees, possession of stolen property, trafficking in stolen property, multiple counts of theft in the first, second and third degrees, and numerous firearm counts. There were a total of 138 different counts.

Linville argued he received ineffective assistance of counsel because his lawyer did not object to the joinder of all the counts. The leading organized crime statute forbids the joinder of counts that are not in the statute's list of predicate offenses. Burglaries of any type are not on the list. That would have weeded out about 43 of the counts, included some with weapon enhancements. Unlike regular joinder/severance issues, whether to allow joinder here is not a matter of the court's discretion, so deficient performance was easily proven. Had a motion been made, it would have to be granted.

On the prejudice prong, the court notes that if all of the burglaries were in separate trials form the main one, a lot of the evidence would have been excluded, and Linville would not have gotten convicted of a number of the firearm enhancements that he did. The court rejects the State's argument that if the burglaries had been severed, Linville would eventually have been convicted of them. The court just looks at the effect on the trial that included all these non-joinable offenses and finds the prejudice prong clearly is met.

State v. Disney, No. 34969-1-III, decided June 27, 2017

Prosecution for, (wait for it), malicious prosecution

Disney accused his lawyer in a Pacific County case of touching him sexually on the leg. The lawyer denied it. Disney made complaints about the lawyer for this alleged touching in about four different venues, ultimately triggering the prosecution on appeal here.

On appeal he attacks the sufficiency of the state's evidence of malice, i.e. the absence of probable cause for his complaint. The second issue concerns whether the trial court's observation of the chairs in his courtroom constitutes taking judicial notice or not.

The panel from Division III, which got this case by way of transfer from Division II, determines that there was sufficient evidence of malice, and that Disney's subjective belief that there was probable cause for his complaint does not defeat this conclusion.

On the judicial notice issue, the court notes that while a judge probably can take judicial notice of the condition of furniture in his courtroom, no objection was made to the trial judge making the observation of the chair, treats this as an issue raised for the first time on appeal, and finds it is not manifest constitutional error that can be raised for the first time on appeal.