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Advanced Sheet Summaries for October 2013

WACDL Advance sheet summaries for 2013

Prepared by Mark W. Muenster


State v. Byrd, NO. 86399-7, decided October 10, 2013

Prosecution for possession of methamphetamine.

Search of a purse in the lap of the arrested person at the time of arrest is upheld. Gant is not controlling, nor Valdez. Justice Stephens, for majority, distinguishes between search of a person, allowed under Robinson (US Supremes) and search of the vehicle a person is riding in, (disallowed under Gant and its state court progeny, e,g, Valdez.)

The line is now drawn at: “all articles closely associated with his person.”, Slip opinion at 7.

This decision creates an open season on the searches on purses and backpacks incident to arrest.

What about if they are in the trunk, or the backseat? The opinion seems to say it would not allow searches of luggage that is a little further away:

Searches of the arrestee’s person incident to arrest extend only to articles “in such immediate physical relation to the one arrested as to be in a fair sense a projection of his person.” United States v. Rabinowitz, 339 U.S. 56, 78, 70 S. Ct. 430, 94 L. Ed. 653 (1950) (Frankfurter, J.,dissenting) (describing the historical limits of the exception). Extending Robinson to articles within the arrestee’s reach but not actually in his possession exceeds the rule’s rationale and infringes on territory reserved to Gant and Valdez.

Justice Fairhurst’s  dissent notes that allowing a search of the purse after a person has been placed in custody, and is no threat to the officer,  is  a step back toward NY v. Belton, which indulged in the fiction that a secured prisoner could somehow get at evidence or weapons in his car, what Justice Frankfurter called  the “progressive distortion” of search and seizure rules. So while the search of the person cannot be assailed, a search  of an object which had been in the person’s possession before the arrest cannot be justified under the officer safety grounds that underlies the search incident to arrest doctrine generally.

Dissent was signed by Chambers as pro tem, Gordon McCloud did not participate.

State v. Bao Dinh Dang, No. 87726-2, Decided October 31, 2013

Revocation of conditional release after a finding of not guilty by reason of insanity.

Court holds that in order to revoke release, the state must prove dangerousness, not just mental illness.

Court holds ,however, that the level of proof required is preponderance of the evidence, not the clear and convincing evidence  level required for a  civil commitment.

Finally, the court holds that hearsay cannot be offered without a showing of good cause for the need to offer it in lieu of live testimony, as in parole revocation hearings.   This error, however, was deemed harmless in this case.

State v. Ollivier, No. 86633-3, decided October 31, 2013

Prosecution for possession of child pornography.
5-4 decision

Issues: Speedy trial
Search Warrant

Twenty two continuances, all mostly  at the request of the defense, (although the defendant himself objected) were the basis of the  court rule based speedy trial argument.  By the time of his trial, Ollivier had spent more than 700 days in jail.

Majority opinion notes that:

CrR 3 .3(f)(2) also provides that a motion for continuance “by or on behalf of any party waives that party’s objection to the requested delay.”

The opinion then examines whether there is a constitutional speedy trial violation, and holds that the state constitution and federal guarantees are identical on this issue. The court then applies the four part Barker v. Wingo test, and finds no prejudice from the delay. There is no presumption of prejudice, absent either extreme delay ( although long, deemed not present here), or government bad faith or negligence (also not present here.)

The search warrant affidavit had material misrepresentations in it (the officer later had to resign under fire). This triggered a Franks hearing. The trial court concluded even after redaction of the misrepresentations that there was sufficient probable cause for the warrant. The Supreme Court affirms this ruling.

The Supreme Court analyzes the informant (another sex offender), under Aguilar/Spinneli /State v. Jackson and finds both a basis of knowledge and adequate reliability and upholds the warrant.

Dissent by Chambers, joined by three others.
Here is the gist of it:

“The court has decided that in order to assure a defendant receives effective assistance of counsel, the defendant must waive his right to a speedy trail, and if he does not, the court will do it for him.”

State. Wooten,   No. 87855-2 ,decided October 31, 2013
5-4 decision

Prosecution for malicious mischief.

Defendant bought a house on a real estate contract, started to repair it for mold. The contract seller defaulted on a second mortgage taken out after the contract sale. Rather than buy the house twice, (once from the contract seller and again from the bank holding the second mortgage) the defendant gave up and abandoned the property. The seller came back to check out house, found it a mess. The criminal charges followed.

Defendant argued that the house was not “property of another”. The statute was amended in 2002 to read:
“Property of another” means property in which the actor possesses anything less than exclusive ownership.


Our decision in this case is narrow. We merely hold where an executory contract conveys anything less than exclusive ownership pending the fulfillment of a condition precedent, the purchaser can be found guilty of malicious mischief for damaging the property if the condition has not yet been met.

Justice Owen’s blistering dissent argues that Wooten’s contract interest did make him the exclusive owner, at least for the purposes of the malicious mischief statute. Legal title and “ownership” should not be equated. The dissent argues that the contract seller maintains only a security interest in the property, not “ownership.”
The dissent also argues that the security interest of the contract seller could not be “physically damaged” so the prosecution should have failed on that ground as well.
Finally, she points out that there is another statute that covers damage to a mortgage interest, which would be analogous to the seller’s contract interest here.
The dissent also argues that homeowners with a mortgage could now be uncertain about making repairs or altering their property, lest the bank holding the mortgage claim its interest has been maliciously damaged.


State v. Hendrickson, No. 30437-0-III, filed October 1, 2013

Prosecution for cyberstalking,  threats to bomb, intimidating a public servant and ID theft. Facts are vaguely reminiscent of the movie Fatal Attraction.

Issues: Sufficiency of evidence on bomb threat and intimidation of a public servant.
Holding: Since two of the people the defendant was trying to threaten were at the time only candidates for public office, they were not “public servants” yet, or alternatively, there was no proof of an intent to affect their official actions.
The bomb threat count fails because there was no specificity to it as to location or time.

State v. Herron, 26354-1-III

Prosecution for rape in the first degree.
Issues : was request for counsel equivocal
Where defendant had explicitly waived his own right to public trial, can he assert the public’s right to trial?

The request for counsel issue is determined by State v. Radcliffe, 164 Wn.2d 900,906-07, 194 P.3d 250 (2008). There was no explicit request for counsel, and this case is no longer under the old Robtoy rule which required the police to clarify any arguably equivocal requests.

Defendant here wanted in chambers voir dire to avoid jury contamination, and increase participation in questioning. He was asked several time by trial judge, who anticipated the open court argument even though at the time most of the litigation on that issue had not taken place, whether he wanted to waive his rights under Art. I §22 to a public trial, in favor of his right to an impartial jury.

So on appeal he was reduced to arguing that the public right to view a trial in Art. I §10 was violated.

The court holds he has no standing to raise it, and that since the right asserted was functionally the same as the one he explicitly waived, he waived it as well.

They also reject his claim of structural error, so he cannot get around lack of standing that way.

State v. McWilliams, No. 42224-7-II, filed October 8

Prosecution for assault in the second degree with enhancements.

1st issue: COA approves admission of prior consistent statement of former co-defendant, made well before plea agreement for lesser charge.  Judge Penoyer’s concurrence emphasizes that forseeability of legal consequences flowing from statement should be only one factor in determining if it was made before a motive to fabricate arose.

2nd issue: Forfeiture of unspecified property. COA basically holds defendant waived his argument by not making a claim and not specifically ID’ing his property, noting the existence of CrR 2.3 as vehicle for litigating this type of claim to property after the trial is over.

3rd issue:          delegation of Community custody conditions to DOC. The court disagrees with the state on whether the issue can be raised now, but holds that delegation to DOC of responsibility for carrying out the sentence is not improper.

State v Berg and Reed, No. 41167-9 – filed October 8, 2013

Prosecution for attempted murder  of a police officer, burglary, kidnapping, robbery and intimidating a witness, with several firearm enhancements.

1st issue:           Court closure argument rejected. A friend of the defendants who had been attending the trial was “trespassed” by a court security officer after he was questioned by other police concerning the intimidation of a witness from an earlier trial. When the trial judge learns about it, he rescinds the order, but the observer does not return.

Court holds the exclusion of a single person is not a courtroom closure, citing State v. Lormor, 172 Wn.2d 85, 92 -93, 257 P.3d 624 (2011).

COA also holds that the exclusion by the security officer was  usurpation of the trial court’s power to control the proceedings, and was “troubling.” But, not troubling enough, since there was no prejudice, and thus any error was “harmless” in the non– constitutional sense, i.e. the outcome of the trial was not materially affected.

2nd issue:        kidnapping conviction vacated, following  State v. Korum, 120 Wn. App. 686, 86 P.3d 166 (2004)
The court defends its Korum decision against attacks by Division One and Three, and holds it is compelled by State v. Green,94 Wn. 2d 216, which discussed incidental kidnapping as not satisfying the restraint element of kidnapping.

Here the restraint is merely incidental to the home invasion  robbery that the defendants conducted, so the kidnapping convictions are vacated, requiring a remand for resentencing.

Remaining issue were unpublished. Worth reading, however, is the court’s discussion of the prosecutor’s improper closing arguments, which called the trial a “search for the truth” and also downgraded the reasonable doubt standard.

Because the defendants did not object, thus eliminating the opportunity for a “curative” instruction, they were unable to meet the more stringent prejudice test.

COMENT:      The vacation of the kidnapping counts would mean a three point drop in the offender score for the murder conviction. This would be a significant improvement on the sentence from the defendant’s point of view, but for the 18 years or so of firearm enhancements that remain in the other four counts.

PRP of Faircloth,  NO. 42318 9- I-I, decided October 9, 2013

Prosecution for murder. Conviction in 1996, affirmed on appeal 1998, first PRP dismissed in 2005. This PRP is based on Faircloth’s recovered memory of being anally raped by his father, whom he killed.

COA holds that this does not constitute “newly discovered evidence” that would allow the untimely PRP. It does not meet the five part test, part of which is that it probably would change the result of the trial. Faircloth argued that this evidence could have been used to cast doubt on premeditation, leading to a second degree murder conviction only. Court notes the evidence showed the murder went on for about 20 minutes, in various parts of the house. Since the “change the result of the trial” prong requires the court to evaluate the new evidence in light of the state’s evidence, the time frame of the murder amply supported the premeditation element.

In a footnote, the court notes that even if this had been classified as “newly discovered evidence” to defeat the time bar, there were numerous other hurdles before relief could be granted.

State v Lindsey, No. 43219-6 –II, decided October 15

Prosecution for trafficking in stolen property.
Defense argues on appeal that the statute provides  8 alternative means and that there was not sufficient evidence of some of the alternatives.
He also argues that since the information did not name one of the alternatives, but the jury was instructed on that  alternative means, the conviction should be reversed.

COA holds, there are only two means, one of which has a number of examples.

Challenge to the information on appeal for the first time fails. The panel decision holds that the information does not have to state facts supporting each means.

Because Lindsey did not object to the to convict instruction, which named one of alternative examples of the first alternative, so he waives the issue.

The court also rejects his argument on unanimous jury verdict, since there was sufficient evidence to support each of the two alternative means that the court identified as existing.

State v. Villanueva, No.  30836-7-III, decided October 17

Defendant won an assault trial, and claimed lost wages are part of the cost of defense. The state appeals. COA construes statute for reimbursement to cover lost wages from an arrest which preceded the filing of formal charges, and the loss of the job which followed.

The guts of the decision:

We construe the words “involved in his or her defense” as applying upon arrest charges referred by law enforcement to the State for formal charging and prosecution. Therefore, RCW 9A.16.11 0 provides reimbursement for costs incurred from arrest through self-defense acquittal. Applying this construction, as the trial court apparently did, Mr. Villanueva’s lost wages were involved in his legal defense because the trial court found they constituted lawful earnings he would have received but for being prosecuted. Thus, the trial court did not misinterpret RCW 9A.16.110 and, therefore, did not err in awarding Mr. Villanueva’s lost wages.

As a bonus, he also won his costs on appeal in defending the trial court decision. A great win for WACDL member Tim Note.

State v. Nava, 28222-8-111, October 22, 2013

Long decision, most of which is unpublished.
Prosecution for murder, gang related.

Main issue: admission of three recorded statements when witnesses could not remember what had happened, under ER 803 (5). The recorded statements are then admitted as substantive evidence, rather than impeachment. The standard of review is  abuse of discretion.
The foundation requirements are:

(I) the record pertains to a matter about which the witness once had knowledge, (2) the witness has an insufficient recollection of the matter to provide truthful and accurate trial testimony, (3) the record was made or adopted by the witness when the matter was fresh in the witness’s memory, and (4) the record reflects the witness’s prior knowledge accurately.

In this case, several of the witnesses either implicitly or explicitly disavowed the accuracy of their statement, but the trial court nevertheless found the accuracy foundation met, for other reasons.


“We view our holding as creating a narrow opening, at most, for admitting a recorded recollection that a witness disavows. To overcome the witness’s disavowal there must be not only other reliable evidence that the record accurately reflects the witness’s prior knowledge but also an articulable reason, supported by the record, why the trial court disbelieves the witness’s current disavowal.”
“We foresee a recorded recollection being admitted over the witness’s disavowal
predominantly in criminal cases involving reluctant witnesses, such as prosecutions of domestic and gang violence.”
State v Saunders, No. 68771-9-I, decided October 21, 2013

Bounty hunter/repossession agent charged with kidnapping and assault during attempted repossession of a truck. He is acquitted of the assault. Issue on the kidnapping charge is the jury instructions.

Saunders argues  that the statutory definitions of “abduct and “restrain” had to be in the to convict instruction. They were instead placed in separate instructions. The defense argument was that all of the portions of the “restrain” definition require that the person act “knowingly”, and that by leaving “restrain” out of the to convict instruction, the state was relieved of part of its burden of proof. The panel decision rejects this argument, citing other cases where definitional words were left out of the elements instruction. The panel points out that Saunders’ lawyer argued that he had the lawful authority to restrain the victim, so he was not prevented by the instructions from arguing his theory of the case.

State v. Green, No. 68444-2-I, decided October 28, 2013

Prosecution for identity theft.

Issue:   Was the warrantless search of Green’s car justified under either the “inevitable discovery” doctrine, or the “independent source” doctrine or a valid inventory search?

Green was arrested for DUI and his car impounded. The police searched his car, and found receipts which suggested identity theft. The police sought a warrant initially  to get evidence of vehicular homicide, which yielded more evidence of identity theft, which the officer did not seize under this warrant until he had obtained a second one.

The court concludes that the initial seizure of the receipts was beyond the scope of an inventory search, since the receipts were not part of the inventory of the property in the car.

After discussing the differences between the “inevitable discovery” doctrine and the “independent source” doctrine, the court finds that neither applies here. Inevitable discovery is not recognized as an exception in Washington, see State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009).
From the decision:

“We hold that the receipts are not admissible under the independent
source doctrine. Neither the receipts nor knowledge of them were in fact found
through an independent source. The receipts were not found while executing the
first search warrant; the State only contends they would have been had they not
been seized during the initial search. But the State’s argument requires this court
to engage in the inevitable discovery doctrine’s “speculative analysis of whether
the police would have ultimately obtained the same evidence by other lawful

Reversed and remanded.

State v Higgs, No. 43097-5-II, decided October 29, 2013

Prosecution for possession of methamphetamine.

This case represents a cautionary tale for  lawyers who scale back the scope of their motions to suppress evidence.

Police obtained a warrant for Higgs’ house based on a drug using woman’s observation of him smoking methamphetamine using a light bulb as a pipe.  There was no evidence of distribution. The warrant of course, had all the usual boilerplate about records relating to distribution, which comprised 9 or 10 of the categories which the police were seeking to seize or search for. The trial lawyer challenged probable cause, based on the reliability of the informant, but did not argue that the warrant was overbroad. Because he did not argue this theory at the trial level, the panel rules the attack on overbreadth made for the first time on appeal was waived. Apparently, appellate counsel did not argue that RAP 2.5 should allow him to raise this for the first time on appeal, opting instead for an IAC claim. The court deals with this by pointing out that there was no prejudice due to the warrant’s overbreadth, since the drugs were seized under the valid portion of the warrant , so even if overbreadth had been argued to the trial court, it could have severed the invalid portions of the warrant.

The court also holds, almost as an afterthought, that a prosecution for possession of methamphetamine has sufficient evidence even if the physical evidence of the drug is merely “residue”, since our statute does not require any particular quantity.

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