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JULy 2018 decisions





State v. Nelson, NO. 94712-1, decided June 14, 2018

Prosecution for attempted 1st degree robbery. Defendant argues that the instructions were defective because they did not require the state to prove that the person robbed had control over his employer’s property.

The court holds that because this was an attempted robbery, the jury instructions did not have to have the element in an ordinary robbery that the person robbed have control over the property in a representative capacity where , as here , he was the employee of a store. The instructions just had to show the elements were intent to commit a crime (robbery) and a substantial step toward that goal.


Benson v. State of Washington, No. 52070-4 II, decided June 8, 2017

Petition for restoration of firearm rights. The state argued that a second degree robbery was a permanent bar, and also that one of Benson’s priors had not “washed out” and therefore his petition was premature. The trial court agreed with the first proposition and denied the petition.

The COA panel rejects the state’s argument that robbery is an automatic bar, since it is not a Class A felony.

Benson argues that Rivard holds that the predicate offense is not a “prior” offense for determining under the statute that the person has no “prior” offenses counted in the offender score. The court agrees and extends Rivard’s holding to situations where, as here, the defendant had two convictions entered at the same time, so the second conviction was an “other current offense.”

State v. Muhammad, No 34233-6-III, Decided June 7, 2018

Prosecution for first degree murder and first degree rape on a felony murder theory.

Muhammad challenged the use of cell phone “ping” evidence. This decision comes out just a little ahead of Carpenter v US, which held about two weeks later that there is a privacy interest in cell phone location data. The panel here ducks the privacy issue on the basis that exigent circumstances justified the warrantless acquisition of the cell phone location data.

Muhammad also argues that double jeopardy prevented his conviction for both rape and murder, since the commission of the rape was what elevated the felony murder to first degree. The panel extensively examines double jeopardy jurisprudence and concludes that under any of the various tests, the legislature did intend multiple punishments in this situation.

Barr v. Snohomish County Sheriff, No. 50623-8-II

The second of two interesting gun related opinions this month.

Barr had been adjudicated as a juvenile of two Class A felonies. He had gotten both sealed under RCW 13.50.260 some 25 years after the adjudications. He sought the issuance of a concealed carry permit from the sheriff , who denied it on the basis that he was barred from possessing firearms due to the juvenile adjudications.

The court follows the decision in Firearm Rights of Nelson, 120 Wn. App. 470 (2003). The Nelson court had held that since Nelson had his record sealed, the adjudications were supposed to be treated as though they had not occurred, and hence there was no bar to firearm possession. The court remands with directions to issue the writ Barr had sought to compel the sheriff to issue his permit. He also is awarded fees under RCW 9.41.0975.

State v. Wisborne, NO. 350-81-9-III, decided June 26, 2018

Prosecution for attempting to elude a pursing police officer.

One of the jurors on this case remembered after hearing the evidence in this case that he may have seen part of the extensive car chase in this case. When he disclosed this, the defense asked for him to be excused and for an alternate to be seated. The court denied the motion and allowed the juror to continue.

The state argues on appeal that actual bias had not been established as to the witness/juror, and in any event the record did not demonstrate what part of the chase the juror had seen, and so any error was harmless.

This is another extensive and well-documented opinion by Judge Fearing. He canvasses the nature of juries going back to England. He concludes that actual bias was demonstrated, requiring the replacement of the juror. He also concludes that this is structural error which is not susceptible to harmless error analysis.

The second issue concerns the admissibility of opinion testimony by the police on the ultimate issue of the case, namely that Wisborne drove recklessly or “eluded” the police. The court follows the decision in State v. Farr-Lenzini, 93 Wn. App. 435 (1999), also an eluding case, where the police opined that the driver knew they were following and was deliberately eluding. Although noting that some opinion testimony which embraces the ultimate issue may be offered, the panel holds that this testimony went over the line.

State v. Jamieson, NO. 34768-1-III, decided June 28, 2018

Review of Knapstad motion which was granted where defendant was charged with first degree murder by extreme indifference when his opponent, who was shooting at him, killed a bystander before defendant had even fired a shot.

In a decision by the highly literary Judge Fearing, the court affirms the dismissal of the homicide counts and also the vast majority of 14 drive-by shooting counts (one for each person in the vicinity of the shooting.) The evidence (mostly video), showed that Jamieson fired at most two shots, and not until after the fatal shot killing the bystander had been fired. The court upholds the dismissal of the drive-by shooting counts without deciding on the unit of prosecution for drive-by cases. Instead, it relies on a case which came out after the briefing of the parties in this case. (State Vasquez, 2 Wn. App. 2d 632 (2018). Instead, it holds that Jamieson was not in the “immediate area of the car” he had driven to the club outside of which the shooting took place. It remands to the trial court for reconsideration regarding the two undismissed counts in light of its decision.

The court reviews accomplice liability, which was the basis of the homicide charges here, and concludes that Jamieson cannot as a matter of law be the accomplice of the man who was trying to shoot him, but who shot the bystander.

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