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February 2019 decisions


Prepared by Mark W. Muenster

Cases decided Feb. 1 through February 8, 2019


State v. Mayfield, NO. 95632-4, decided Feb. 7, 2019

This case settles, more or less, whether the federal “attenuation” doctrine is an exception to the exclusionary rule under Art. I §7. The decision also clarifies that parties do not have to provide a Gunwall analysis in future Art. I §7 cases.

Mayfield was parked in a driveway sleeping when the property owner came home and called the police. Mayfield left when he could not get his truck to move. The police stopped and detained him. There was no suspicion of any crime, and the truck belonged to Mayfield. When the police ran his name they found no warrants, but did find out he was on DOC supervision and had previous drug related contacts.

The police asked permission to pat him down, which yielded money folded in a way the police thought was consistent for use in a drug purchase or sale. Next they asked for consent to search the truck, and told Mayfield he had the right to refuse. He consented, and the search led to discovery of methamphetamine in the truck.

The state claimed here that the provision of “Ferrier” type warnings, and the subsequent consent provided attenuation from the original illegal detention. The trial court agreed. The court of appeals affirmed in a split decision, holding that Mayfield had not adequately briefed the state constitutional issue, and that the Federal attenuation doctrine allowed the search.

The lengthy opinion traces the roots of the exclusionary rule in both state and federal law, and its various exceptions. The court holds that while the state constitution did not categorically exclude the possibility of attenuation, the facts did not support it here. Attenuation required a true superseding cause (as in tort law) to break the causal chain between the illegal detention and the search. Ferrier warnings were not enough to break the chain.

This decision is a must read and also welcome news for Article I §7 fans.

State v. Gerhke, No. 95635-9, decided Feb. 14, 2019

Prosecution for second degree murder/felony murder.

After the state put on its last witness, it asked to amend the charges to include manslaughter in the first degree. The prosecutor also said he was resting even if the amendment was not allowed. The jury did not reach a verdict on the murder charge, and instead convicted on the manslaughter charge.

The lead opinion holds that the amendment was improperly allowed, and dismisses the charges and remands for “further proceedings consistent with this opinion,” applying the State v. Pelkey rule regarding late amendments to the information.

The concurring opinion (Fairhurst and Owen) would hold that the Pelkey rule, which does not require a showing of prejudice, does not apply here, but there was prejudice under the court rule and thus the amendment was improper.

The dissenters (Gonzales, Yui, and Johnson) say that this is an unwarranted extension of Pelkey, because the prosecutor had not actually said, “we rest”, but had merely announced his intention to rest if the amendment was not allowed. They would want to keep a brighter line rule and require the formality of resting before Pelkey applied. They note the same result could have been reached by the avenue followed by the concurrence, namely finding prejudice under CrR 2.1. But the dissent goes further and says Gerkhe could not show prejudice at all.

What happens after remand?

Since the jury never reached a verdict one way or the other on the second degree murder, it is possible the state could refile that charge, and then this case would probably go up on whether there was an “implied acquittal.”

State v. Yancey, NO. 95992-7, decided Feb. 14, 2019

Prosecution for delivery charges in a school zone.

After extensive plea bargaining, a defendant with no previous criminal history pleaded guilty to two counts of delivery of buprenorphine with school zone enhancements. The resultant standard range was above what is permitted for a residential DOSA under RCW 9.94A.660. The trial court apparently waived the school zone enhancement to create a lower standard range and ordered the residential DOSA anyway. The COA essentially affirmed but remanded to clarify the basis for the trial court decision.

The Supreme Court reverses. It interprets the DOSA statute in the way advocated for by the state, namely that a court can waive the standard range and then impose one or the other of the DOSA alternatives but which one would depend on the standard range the person was originally facing. The trial court can’t waive the enhancements to get at a lower range, and then impose residential based DOSA. The court distinguished State v. Mohamed, 187 Wn. App. 630 (2015), which appeared to endorse the idea of waiving the sentence enhancements to get to a lower standard range to determine which DOSA alternative could be used.

The remand is for a full resentencing hearing. The Supreme Court notes that the trial court could consider, among other things, the first time offender waiver, because although this was a drug offense, it was not one of the types excluded from first time offender waiver because the drug was a Schedule III controlled substance.

State v. Merritt, NO. 95115-2, decided Feb. 21, 2019

This case asks whether an information is defective if it does not allege facts bringing the charge within the statute of limitations.

Merritt and an accomplice were charged with mortgage fraud. The accomplice pretended to be another person who was a licensed real estate appraiser under whom he had trained and then wrote appraisals used by Merritt in getting mortgage financing for her clients.

The acts themselves occurred outside the statute; but the discovery of the defendant’s roles came within three years of the filing of the information.

The court holds that there were no defects in the information that warranted reversal, noting that the defendant knew when the acts occurred, did not ask for a bill of particulars and did not move to dismiss the charges for being outside the statute of limitations.


State v. Garcia-Gomez, No. 75673-7-I, decided Feb. 5, 2019

Prosecution for assault in the second degree, multiple counts and alternative means.

Garcia-Gomez argued there was not sufficient evidence of each alternative means, and hence he was deprived of his right to a unanimous verdict. The panel affirms the convictions, holding that the jury did not have to be unanimous as to which means had been proven, where there was overwhelming evidence of each alternate means alleged. The court also rejects the subsidiary argument that the alternate means are separate crimes.

PRP of Alston, No. 76497-7-I, decided February 5, 2019

Alston sought relief from a 36 month community custody term. At the time of his conviction, the statute provided for a range of community custody from 24-48 months. Before he was released from prison, the statute was amended to make it a fixed term of 36 months, with no range. The statute by its terms was retroactive, and directed DOC to review sentences for individuals sentenced under the prior law. DOC did this and fixed his term at 36 months.

Alston argued that this legislative change was a violation of the ex post facto clauses of the state and federal constitutions and asked for the term to be set within the former range of 24-48. The court agrees and remands for a re-determination of the community custody range.

Since the DOC could now go up to the top of the range, 48 months, this “win” could end up with Alston being forced to serve a longer community custody sentence, so this could be a “be careful what you wish for” situation.

State v. Nickels, NO. 35369-9-III decided February 7, 2019

Prosecution for first degree murder.

Defendant was charged with first degree murder in Grant County. His conviction was overturned on appeal. In the meantime, a new prosecutor was elected who had been part of the defense team in the first round of the case. He personally agreed that he was conflicted out, but his office resisted a total disqualification. The trial court denied a motion for office-wide disqualification. The COA granted a motion for discretionary review.

The panel in a divided decision follows State v. Stenger, 111 Wn.2d 516, 760 P.2d 357 (1988), and requires disqualification. The panel says this is not a per se rule, and there could be extraordinary circumstances which would allow a prosecutor’s office to continue with a case even if the elected prosecutor had to be disqualified. However, merely “screening” the elected prosecutor does not qualify as an extraordinary circumstance. Whether extraordinary circumstances exist may depend on what defense function the prosecutor fulfilled in the earlier case, and also the severity of the charge is a factor. Here, where the charge was severe, and the participation of the elected prosecutor in the earlier round was not insignificant, disqualification of his whole office was required.

State v. Romish, No. 35643-4- III, decided February 7, 2019

Prosecution for possession of stolen property. A restitution order required defendant to pay for repairs to the stolen property, and rental expenses to cover its replacement while under repair.

The panel holds that there was insufficient evidence that the defendant had caused the damage to the property, a Bobcat machine, after it came into his possession. The court distinguishes between theft of the property, and possession of stolen property. In the former case, the thief is liable for all damages, whether he causes them or not. The possessor of stolen property, however, must be proven to have caused the damage. The panel vacates the order in part, allowing some but not all of the previously ordered restitution.

State v. Nelson, NO. 35273-1-III, decided February 19, 2019

Prosecution for DUI.

Defendant agreed to take a breath test. He argued that the breath test was a warrantless search.

The majority of the panel holds that the search issue was controlled by the plurality decision in State v. Baird, 187 Wn. 2d 210 (2016), and holds that a breath test is a valid search incident to arrest, and affirms the conviction. The majority reviews most of the recent state and Federal precedents involving breath testing, so it is a useful read for the that reason.

The dissent argues that Baird did not decide whether Art. I §7 allows breath testing without a warrant , and that the state needs to show exigent circumstances before a warrantless breath test. The dissent also answers the majority’s claim that requiring a warrant would destroy 50 years of “implied consent” jurisprudence.

State v. PMP, No. 50821-4-II, decided Feb. 20, 2019

PMP was convicted while he was a juvenile of indecent liberties by forcible compulsion and first degree child molestation. The conviction occurred in 1993; the offense conduct in 1990 and 1991.

He was relieved of the duty to register in 2001 , and moved to seal his two convictions. His initial motion misidentified indecent liberties as a Class A felony, which by that time it was. At the time of his conviction, it was a Class B felony.

The seal statute categorically prohibits several Class A felonies from sealing, among them indecent liberties by forcible compulsion. Not surprisingly , since PMP’s lawyer had identified the indecent liberties as a Class A, the superior court denied his motion to seal the indecent liberties count.

PMP refiled the seal motion , this time correctly identifying the indecent liberties charge as a Class B. The court still denied the motion.

The COA panel holds that pursuant to State v. Rivard, 168 Wn. 2d 775 (2010) a crime that was committed when it was a Class B does not become a Class A after an amendment changing the crime to a Class A. Consequently, PMP’s indecent liberties charge, committed when it was a Class B, did not subsequently become a Class A after the amendment of the statute. The sealing statute allows Class B felony convictions to be sealed without limitation. It was error for the trial court to deny the sealing motion for the Class B felony version of indecent liberties.

The court also rejects the state’s argument that the elements of the offense control rather than the classification of the crime.

PRP of Gossett, No. 49525-2-II, decided Feb. 20, 2019

Gossett is serving a long sentence for sex crimes against his children. He sought visitation with his minor children, one of whom was a victim of the offenses, which DOC refused to allow.

The panel decision rejects all of his arguments. There is no liberty interest created under either the Federal due process clause or its state counterpart which would guarantee visitation. The Superior Court order which amended the judgment to permit visitation did not bind DOC because DOC was not present at the hearing nor served with notice of it. DOC did not violate its own policies regarding visitation.

State v. Lee, NO. 77038-1-I , decided Feb. 25, 2019

Defendant is a passenger in car stopped for traffic violations. The driver is suspended and is arrested. He gives his consent to search the car. Lee left her purse in the car, when she was asked to get out. The police check to see if Lee has a valid license. They apparently find she has a drug conviction and ask for permission to search her purse. Allegedly, she consents. She argues the consent is tainted or vitiated.

The panel holds that since the passenger is validly detained for the time it takes to do a traffic stop, the seizure itself does not taint the consent she gave. She makes no other argument that she was coerced into consenting. The police thrown in for good measure that she was given Ferrier warnings that she did not have to consent.

The conviction is affirmed.

Although this is framed as a traffic stop case, the police are referred to throughout the opinion as “detectives”, which suggests there was something more going on that a mere stop for cracked windshield and brake light violation. Absent the consent, the police probably would have lacked authority to search the purse. See State v. Parker, 139 Wn. 2d 486.

Post Sentence Review of Milne, No. 36093-8-III, published Feb. 28, 2019

This was originally an unpublished decision that came out in January. The court granted Milne’s motion to publish.

Milne was sentenced under the prison based DOSA alternative, RCW 9.94A.662.

The trial court added a provision for 12 months of additional community custody in the event she failed to complete the DOSA sentence. DOC petitioned the trial court to remove the extra (provisional) community custody term, arguing it was not authorized by the DOSA statute. The bail jumping charge for which Milne was convicted does not qualify for community custody under the main statute for community custody, 9.94A.701. So the panel remands with directions to strike the contingent extra 12 months of community custody.

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