October 2015 Advance Sheet Summaries I

ADVANCE SHEET SUMMARIES FOR OCTOBER 2015

SUPREME COURT CASES

State v. Leonard, No. 90987-4

This case builds on the recent decision in State v. Blazina, regarding the imposition by the trial court of legal financial obligations (LFOs). The trial court imposed the cost of incarceration at $50/day, and the cost of "medical care" Leonard received while in custody. These are discretionary costs. The court made no determination at the time, on the record, about Leonard’s ability to pay these costs. The Supreme Court remands to allow the trial court to make that determination.

State v. Meyer, 90846-0, Decided October 22, 2015

Prosecution for Robbery. Defendant was read Miranda warnings. When he asked for clarification, he was given contradictory and confusing advice which suggested he could only have counsel appointed after his arrest and first appearance before a court.

A slim majority of the court finds there was a violation of the Miranda rules, but also finds that there was overwhelming evidence of guilt, making the error harmless.

Justice Madson, concurring in the result only, notes that the defendant had been arrested multiple times before, and Mirandized each time so that the likelihood of his being confused by the supplemental "warning" was remote.

PRP of Moi, 89706-9, decided October 29, 2015

Prosecution for murder, and unlawful possession of a firearm.

Moi was prosecuted in 2006 for second degree murder, and unlawful possession of a firearm. He moved to sever the gun charge. The motion was not granted, but the parties agreed that there would be a bench trial on the gun charge. He was acquitted on the gun charge, and the jury hung on the murder charge. At the retrial on the murder charge, he was convicted.

He lost his direct appeal, and did not raise collateral estoppel or double jeopardy. He filed a timely pro se PRP. The court granted review and appointed counsel. The court unanimously holds (within 6 weeks of the oral argument, perhaps a new speed record) that the acquittal on the gun charge precluded the state from arguing that Moi shot the victim with the gun he had been acquitted of possessing.

The first three elements of collateral estoppel, a component of double jeopardy, were not contested by the state:

"( 1) the issue decided in the prior adjudication must be identical with the one presented in the second; (2) the prior adjudication must have ended in a final judgment on the merits; (3) the party against whom the plea of collateral estoppel is asserted must have been a party or in privity with a party to the prior litigation; and (4) application of the doctrine must not work an injustice."

The state’s fall back position was that it would be unjust to apply collateral estoppel here because (1) Moi had moved for severance of the gun charge and (2) because the State claimed surprise when Moi testified at the first trial that someone else had shot the victim.

The court demolishes both of these arguments. The state had opposed severance, and convinced the trial court not to grant it. The state also suggested the compromise of the bench trial, to which Moi had agreed. Secondly, Moi had told the police from the beginning that someone else had shot the victim. It was just not until the trial that he supplied a name. The court concludes that since the gun was the common issue in both cases, acquittal on the possession charge precludes the conviction on the murder charge.

The case is remanded to the trial court, presumably to vacate the conviction and release Moi.

COURT OF APPEALS CASES

State v. Hodgins, NO. 31780-3-III, decided October 1, 2015

Issue: Whether misdemeanor convictions for domestic violence count as points toward the offender score for a new felony DV sentencing.

Facts: Hodgins had three misdemeanor DV convictions. The state argued at his sentencing on a new felony DV charge that his offender score was 4, based on the three misdemeanors and another current offense. The trial court decline to use the misdemeanors as criminal history, based on the argument that to do so the prior convictions would have to fit two different definitions of domestic violence in RCW 10.99.020 and 26.50.010.

Holding: Following the decisions in Divisions I and II, the court holds that although the legislature used the word AND between the two statutory references, it really meant OR. Thus if the priors met the definition under either statute to qualify as domestic violence, they would count in the offender score. The case is remanded for resentencing with the higher score.

PRP of Mines, 25729-1-III decided October 8, 2015

This is another in a series of PRPs raising the issue of open courts/ public trial rights. A recent and very long opinion in PRP of Fort, decided on Sept. 16 by Division III, shows how to do it right.

The court decides Mines’ public trial right was violated by a jury selection process that was not done totally in open court, at his request. There was no waiver or invited error, however. Nevertheless, Mines loses because the matter was not raised in his direct appeal, and because the portion of his PRP raising this issue in the form of an IAC claim against his appellate attorney was barred by RCW 10.73.090, because it was not raised within 1 year of the judgment being final. The result in Fort is distinguished because there the IAC claim was brought while the direct appeal was still going on. The court also rejects an argument based on "equitable tolling" because Mines cannot meet the tests for that to apply: Bad faith, false assurances, or deception.

State v. Linder, No. 33008-7-III, decided October 13, 2015

Prosecution for possession of controlled substance. This case was heard by Division III despite taking place within Division II.

Linder was arrested for DWS. An inventory search of his person, now totally allowed under the recent Supreme Court decision in State v. Brock, as a search of an object closely associated with the person, yielded a little tin box. Linder refused consent to search the box. A canine sniff suggested contraband, and the police applied for a warrant and were granted one. The officer who executed the warrant also prepared an inventory of what he found. He did this alone. His inventory was reviewed by his superior the next day.

Linder moved to suppress, arguing the police had failed to comply with CrR 2.3 (d), the court rule that requires an inventory to be prepared either in the presence of the person from whom the property is seized, or in the presence of a second officer other than the one doing the inventory. The trial judge granted the motion.

The COA panel notes that "ministerial" violations of the search warrant rules have usually not led to suppression, as they are non-constitutional in nature. However, the court focuses on whether there is any other effective remedy, and whether the defendant could show prejudice. Here, the trial court indicated there was no other remedy, and there was prejudice, because the defendant would be forced into a swearing match with the police about the content of the box, since the inventory had not been conducted with a secondary officer witness. So the panel upholds the suppression of the evidence, noting that it upholds two of the three purposes of the exclusionary rule: protection of privacy, and upholding the integrity of the judiciary by not accepting evidence acquired by illegal means.

State v. Rooney, No. 46236-2-II

Prosecution for possession of a controlled substance and unlawful possession of a firearm, first degree.

Rooney, a former DOC probationer, was living with another DOC probationer who was currently under supervision. The roommate had moved without notifying DOC, so when she was tracked down, DOC arrested her, and wanted to search their common bedroom. There is implied consent on the part of the probationer under statute to allow a search. However, "common authority" is trumped by Rooney’s vehement objection to the search. If someone is present and objects to the search, the common authority derived from the other occupant’s consent ( in this case, implied consent) does not allow the search of the area. So the drugs found in the bedroom are suppressed.

However, the police could search Rooney’s pants, because the room was festooned with various knives, axes, and weapons. The police had a reasonable suspicion that Rooney’s pants might contain a weapon, and in fact, they did. The COA panel affirms the denial of the suppression motion involving the frisk of Rooney’s pants and affirms that part only of his conviction.

State v Arredondo, No. 30411-6-III, decided in September, motion to publish granted October 13, 2015

Prosecution for first degree murder and first degree assault(s). Defendant convicted of second degree murder and the three first degree assaults. Exceptional sentence, based on gang aggravators added 60 months to all counts, and all counts ran consecutively to one another. The court also ordered the cost of incarceration at $50/ day, which would run to more than $1.5 million.

Issues: Court room closure

ER 404 (b) evidence from an earlier drive by shooting

Limitation on cross–examination of the mental health issues of jail house informant witness

Sufficiency of evidence to support the gang related sentence enhancement

Blazina issue regarding the cost of incarceration.

Closure issue: The Yakima Court house was closed at 4 PM during the trial, but members of the public would have been admitted if they tried to get in. The sessions in question only went to about 4:15. The panel concludes that the courthouse/courtroom was not closed to members of the public, after a reference hearing on this topic.

ER 404 (b): The earlier drive by had a shell casing that was matched to one found in the car parked at Defendant’s house, which was also the same type of car allegedly used in the drive by shooting. The victims were rival gang members, as were the victims in the charged crime. The panel finds sufficient evidence that defendant committed the uncharged acts, that the purpose (Motive, intent, identify) were permitted under the rule, and that the probative value of the evidence exceeded its prejudicial impact. Given that this is a discretionary ruling by the trial court, the COA upholds the trial court’s denial of the defendant’s motion in limine and affirmed the admission of the evidence.

Limitation on Cross–examination: The jail house informant had mental issues which were discussed in a hearing outside the jury’s presence. He claimed short term memory problems only, not long term memory problems, and he was (probably) not under the influence of drugs at the time he shared defendant’s cell and heard his admissions. The panel approves of the trial court’s restriction on cross–examination.

Gang Enhancement: The gang enhancement evidence was sufficient, following several other similar COA decisions involving Norteno vs Sureno gang violence, despite any direct evidence that defendant would gain from being involved in a drive by shooting of a car of rival gang members after a scuffle at a party in which he was not involved.

The panel concludes that a remand is in order with respect to the Blazina issue. The dissent points out that these amounts would not come due until the defendant was around age 110, sometime in the next century, and there are other avenues to try to reduce the amount imposed.

State v. Thierry, No. 45379-7-II, decided October 20, 2015

Prosecution for various sex offenses. Only part of the decision is published.

The panel reverses for prosecutorial misconduct during the rebuttal portion of the closing arguments. Defense counsel did object, which allowed the issue to be reviewed under the slightly easier to meet standard of "substantially likely to affect the verdict."

The decision is useful for its review of similar reversals for misconduct in argument relating to "inflaming the passion or prejudice of the jury". Here the prosecutor argued, essentially, that if the child witness in this case could not believed, her office would just have to give up prosecuting child sex cases. The prosecutor also misrepresented the defense argument on credibility of the witness by saying that defense counsel had said the witness could not be believed just because of his age. The panel finds that this was misconduct, and posed a risk of affecting the outcome, and remands for a new trial.

State v Turpin, No. 72101-1-I

Prosecution for burglary and other property crimes.

Issue: Open Courts/Boneclub

One of the jurors in Turpin’s case became sick over the noon hour and was excused. The court announced this right after the recess. Turpin argued this excusal violated the open courts provision of the constitution. The court holds that an administrative excusal when a juror is physically unable to perform her duties does not constitute a closure under the "experience and logic" tests of State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012).

State v. Ronquillo, NO. 71723-5-I, decided October 26, 2015

Ronquillo was convicted of murder and other offenses involved in a drive by shooting when he was 16 years old. He received a 51.3 year sentence, composed of three consecutive sentences for three "serious violent" offenses, and a concurent sentence for a fourth conviction. He had filed a PRP regarding the length of the sentence based on State v. Breaux. At the re–sentencing following this PRP, the trial court concluded it could not apply Miller v. Alabama, (juvenile life without parole sentences violate the 8th Amendment) because Ronquillo’s sentence did not involve life without parole.

The panel reverses and remands for resentencing. Following Miller and the Washington Supreme Court decision in State v. O’Dell, (August 2015) trial courts can now consider whether youth, in a particular case, can furnish the basis for an exceptional sentence downward. The court also notes that the "clearly excessive" mitigating factor from the multiple offense policy may apply.

State v. Hancock, NO. 46149-8-II, decided October 27, 2015

Prosecution for driving while licensed suspended first degree.

Defendant argued that because the driving without a license (DWOL) statute is statutorily declared to be a lesser included offense of DWLS I, and because DWOL has, as an element of the offense, the requirement of proof of driving on a public highway, that the greater offense must require such proof as well.

COA "harmonizes" the apparent contradiction in the statutes by saying that while DWOL is still a lesser included of DWLS because of the statutory dictate, its element is not imported back into DWLS, since the Legislature specifically deleted that element in an earlier amendment to the DWLS statute. The conviction is thus affirmed despite no proof of driving on a public way.

State v Thompson, NO. 46012-2-II, decided October 27, 2015

Prosecution for multiple counts of first degree robbery, and assault in the first degree, and one count of unlawful possession of a firearm. Only part of the decision is published.

In the published part of the decision, the court holds that defendant’s exclusion from the courtroom for unruly behavior did not violate his right to be present during proceedings, since the trial court told him the conditions he would need to meet to return. Defendant argued that the conditions of return had to be reviewed with him each day. The panel declines to impose a daily reminder requirement to the rationale of State v. Chapple, 145 Wn.2d 310, 318, 36 P.3d 1025 (2001), which sets out the conditions to exclude a defendant from the court room.

State v. Clark, No. 70862-7-I, decided October 26, 2015

Prosecution for robbery in the first degree and attempted robbery in the first degree. Clark was charged as an accomplice for being the getaway driver for another guy who actually went into the banks. No weapon displayed by the actual robber. The crimes were elevated to first degree because the victims were financial institutions.

In the reported part of the decision, Clark challenged the sufficiency of the evidence, relying mostly on the absence of overt force or threat, and on the recent Division II decision in State v. Farnsworth, 184 Wn. App. 305, 348 P.3d 759 (2014). review granted, 183 Wn.2d 1001, 349 P.3d 856 (2015), Farnsworth had held that the presentation of a robbery note did not constitute sufficient evidence of force, and that the appropriate charge was theft in the first degree. Farnsworth, it should be noted, was in the context of a third strike for the defendant there. The Division I panel refuses to follow Farnsworth, and holds that the testimony of various bank personnel adequately established the "force or fear" element of robbery.

In affirming the conviction here, the court notes there was a significant amount of cellphone evidence linking Clark to Reynolds, the principal. Reynolds had also given a statement implicating Clark to the police, which he disavowed at trial. Clark also had phone calls from the jail to his girlfriend which were used against him. And, Clark was also charged and convicted of attempt to elude while in the getaway car with Reynolds.

State v. Munoz–Rivera, No. 322356-1-III Decided October 29, 2015

Prosecution for assault in the second degree, felony harassment, and witness tampering.

The second degree assault was based on defendant holding a knife to the neck of his girlfriend’s sub–teenage daughter during an argument. The harassment charge was based on threatening to kill her.

Defendant argued that by placing the victim’s initials and DOB in the elements instruction the state assumed the burden of proving her DOB.This argument is rejected by the panel.

Defendant also argued that his lawyer was ineffective for not arguing at sentencing that the assault and the harassment were the same criminal conduct for offender score purposes. The court tacitly decides that these two crimes are the "same criminal conduct," but holds that the decision not to argue this point was tactical, since defense counsel was also trying to fend off the prosecutor’s argument for an exceptional sentence based on the victim’s age:

Rather than argue whether the two acts were separate criminal acts for a one offender point reduction, defense counsel successfully focused on rebutting the State's requests for an exceptional sentence and for the witness intimidation sentence to run consecutive with the two other convictions. Indeed, had he argued both issues, the trial court might have rendered a split decision, agreeing with the defense that the two acts were the same for sentencing purposes, but agreeing with the State that an exceptional sentence or a consecutive sentence was warranted. We find defense counsel's strategy during sentencing sound and not deficient.

Defendant did get some relief. The court remands for the trial court to make a Blazina determination of the defendant’s ability to pay legal financial obligations, strikes a no contact order (but notes there is another one already in place), deletes a scrivener’s error that stated there was a basis for an exceptional sentence, and limits the treatment obligation to alcohol treatment only, since there was no evidence of another type of drug problem.

State v. Parks/PRP of Parks, Nos. 26476-9-III and 27294-0-III, decided October 29, 2015

Prosecution for rape in the first degree. Defendant convicted of rape in the second degree.

Defendant argues a Bone Club/open courts issue when the court swore in the venire from which the jury was ultimately chosen in the juror assembly room rather than in the court room. Without deciding that this did not constitute a courtroom closure, the court holds that no Washington case has held this was the proceeding to which the open court right attaches, and that calling it part of the jury selection process does not make it so. The argument also fails when the State v. Sublett, 176 Wn.2d 58, 70, 292 P.3d 715 (2012) "experience and logic" test is applied to whether this should be an open court issue.

Defendant’s PRP and direct appeal also raised the issue of whether the trial court properly instructed the jury on second degree rape as a lesser included offense. The defense had objected to the lesser offense being given to the jury.

The court never discusses the "inferior degree" statute, but focuses strictly on the State v. Workman, 90 Wn.2d 443, 447-48,584 P.2d 382 (1978) test for lesser included offenses. Defendant argued that there was no affirmative proof that only second degree rape was committed. The court notes a superficial resemblance to State v. Brown, 127 Wn.2d 749,754, 903 P.2d 459 (1995) which had reversed a second degree rape conviction where defendant argued there was no affirmative evidence of the lesser successfully. In Parks case, however, there was some evidence of forcible compulsion without the use of a weapon from the examination of the doctor, and the complaining witness’ physical injuries. So the lesser included instruction was properly given.