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June 2015 decision summaries


Prepared by Mark W. Muenster

Cases decided in June 2015


State v. Barry, NO. 89976-2, decided June 4, 2015

Prosecution for child molestation, three counts. Defendant was convicted of two. During deliberations, the jury asked whether it could consider Barry’s “demeanor/actions” as evidence. After consultation with counsel, the court instructed them they could consider “what they witness in the courtroom.” The prosecutor did not argue in closing anything about Barry’s demeanor, and there was not indication at the time of the question what might have led to the question.

A 6-3 Majority holds that the instruction did not violate the 5th or 6th amendment, and could not be construed as an unfavorable comment on the defendant’s silence.

The court notes that whether this was a due process violation was not briefed by the defense , and so does not consider this as a possible basis for reversal.

Viewed as non-constitutional error, Barry is done in by the absence of anything in the records which might point to prejudicial impact, so the court affirms.

The dissent points out that the trial court had instructed everyone in the trial, out of the jury’s hearing, not to show emotional reactions to the witnesses. The dissent suggests Barry’s compliance with this advice from the court might have led to the jury’s question.

State v. Hardtke, NO. 90812-5, decided June 11, 2015

Issue in this case is whether courts can require a defendant to pay for pretrial alcohol monitoring systems.

The court holds that they can, but only up to the statutory limit set out in RCW 10.01.160, which happens to be $150, and remands to the trial court with directions that it cannot order payment in excess of that amount.

The Legislature has already acted to reverse this decision.

State v. Jones, No. 85236-7, decided June 11, 2015

Prosecution for second degree assault, a third strike in this case.

Defense counsel did not interview two witnesses who were listed in the police report, and a third witness whom the prosecutor had mentioned. One of the witnesses testified at trial, after a three day recess granted because of the late disclosure of the witness’ statement. The Supreme Court ordered a hearing to take additional evidence under RAP 9.11 (what a great number!). After the RAP 9.11 hearing, at which the trial court found there was deficient performance, but not prejudice, the Supreme Court reverses, and finds both deficient performance and prejudice. On a reasonable probability basis, which the court characterizes as less than a preponderance of the evidence, the outcome could have been different if at least the most important of the un-interviewed witnesses had been interviewed before trial and then called as witnesses.

On the three strikes issue, the court holds that Jones’ two Florida assault priors do count as strikes, despite the fact that diminished capacity is not a defense under Florida law, but is under Washington law. The court follows its controlling decision in State v. Sublett, 176 Wn.2d 58, 88-89, 292 P.3d 715 (2012).

The concurrence/ dissent agrees that Sublett controls on whether the Florida priors count as strikes. It then assumes, without agreeing, that the failure to interview the witnesses was deficient performance. Then the dissent disagrees with five justice majority assessment of whether Jones was prejudiced by his counsel’s deficient performance.

State v. SJC, no. 90355-7, decided June 11


A juvenile charged with fourth degree assault with sexual motivation moved to seal his court file. The court holds that the juvenile statute in place at the time, RCW 13.50, provided adequate protection to both the juvenile and the public’s interest in court proceedings, and decides that Art. I, §10 does not require an Ishikawa hearing and findings before the file is sealed.

The court does a brief history on why juvenile court is different that adult court as a background to its decision. Note that the applicable statute has been substantially amended in 2014.

State v. E.J.J, NO. 88694-6, June 24, 2015

A long awaited and well deserved victory for recent President’s Award winner Lila Silverstein of the Washington Appellate Project.

EJJ was charged with obstructing for observing his sister’s detention by the police, commenting on what they were doing, and refusing to close both his screen door (which he did) and his opaque main door (which he did not). The trial court convicted on the theory that his failure to comply with the police order to go away and stay away, by shutting his door, inconvenienced their investigation, thus “hindering” or delaying it.

This is a 9-0 decision, but it does not look like one. The majority holds that the First Amendment prohibits a prosecution for obstructing when it looks like the conviction may be based in part on protected speech:

“Simply put, we cannot be certain that E.J.J.’s conviction was not based on his speech alone.”

The Chief Justice writes separately to propose a common law, non-statutory element be added regarding whether the police conduct contributed to the defendant’s allegedly obstructing conduct:

“I believe this court must take this opportunity to add a common law requirement to the obstructing statute to ensure its constitutional application as follows: where the officer’s conduct substantially contributed to the escalation of the circumstances that resulted in the arrest for obstruction, the state has failed to meet its burden to show that the defendant willfully hindered, delayed, or obstructed a law enforcement officer in the discharge of his or her official powers or duties. Under this common law requirement the State would be required to prove that the defendant’s obstructing conduct was not substantially produced by the officer’s escalating conduct.”

Justice Gonzales writes separately to continue the point he made during his 8 minute “question” during oral argument, namely that context matters:

“Let me explain why I write of such lofty things in what might be called a garden variety obstruction case….

“As the American Civil Liberties Union of Washington rightly points out, E.J.J. was not punished for his conduct. E.J .J. was punished because he was watching and speaking when the police did not want him to.”


State v. Bird, NO. 71615-8 –I. decided June 1

Prosecution for felony DUI.

Defendant argued that there was insufficient evidence of the predicate offense to raise his garden variety DUI to a felony DUI. He had a prior conviction for vehicular assault, which raised the new DUI to a felony. He argued that it was not clear which prong of the vehicular assault he had been convicted on.

COA panel disagrees. The trial court gets to determine as a matter of law whether a prior conviction is “applicable”. Here the plea form and the information itself showed that he had been convicted of all three prongs, including the DUI prong. The Superior Court’s order dismissing the charge is reversed and remanded for trial.

State v. Rodriquez, 71341-8-I, decided June 1

Prosecution for second degree assault by strangulation.

Defendant argues there was not sufficient evidence of strangulation, partly based on the dictionary definition of “obstruct”, in the context of airway or blood flow. The court holds a temporary obstruction of airway or blood flow is sufficient, and there was sufficient evidence of this in the case.

Second issue was regarding the 911 call. Defendant argues it was not an excited utterance. COA panel demonstrates that there was no abuse of discretion by allowing the 911 call into evidence. No confrontation clause issue since the complaining witness testified.

State v. Miller, No. 32043-0-III, decided June 4, 2015

Prosecution for driving while suspended and an ignition interlock violation.

Driver is given a citation for the traffic offenses, but with no court date. He checks with the court, is told there is no record of the citation. Eventually, the state files a complaint, the driver is arraigned, and trial date set. He moves for dismissal, because the delay from the original citation to the trial date exceeded 90 days. He relies on City of Seattle v. Bonifacio, 127 Wn.2d 482, 900 P.2d 1105 (1995) which held that if the citation is not filed in court within 48 hours of its issuance, the speedy trial clock starts to run.

The panel holds that Bonifacio’s holding has been superceded by the extensive 2003 amendments to the time for trial rule in District Court. Under the court rule, the time for trial was timely. The COA affirms the Superior Court, which had reversed the District Court dismissal of the charges.

State v. Vassar, No. 33004-4-III, decided June 9, 2014

Prosecution for theft of a motor vehicle. Defendant sold a car to another person, but retained the title. She later took it back with a key she retained. When confronted by the police , she claimed the other person had forged the bill of sale, and claimed she had not been paid by the purchaser. After returning from a month vacation, the same officer told her he had probable cause to arrest for theft, but did not obtain a warrant. The truck was retrieved at a Goodwill lot, but not in driveable condition. Vassar turned herself into the jail.

Defendant argued that she was “provoked” into calling the prosecution witnesses “liars”, that the prosecutor committed misconduct by saying that a state witness was “bonded” without evidence of that, and watered down the burden of proof.

The panel rejects these arguments. Because no objection was made at trial, the potential errors had to meet the “flagrant and ill intentioned” level. Defendant also tried to argue ineffective assistance to aid this issue, but apparently without sufficient argument and citation to authority.

The “Liar” answer was non–responsive, so the panel holds it was not “provoked”. The comment about the witness being bonded is dismissed as a “Stray” comment not likely to affect the outcome. Finally, since defendant did put on evidence, the prosecutor’s comments on the plausibility of her claims was not misconduct, unlike the arguments in State v. Fleming, 83 Wn. App. 209, 214, 921 P.2d 1076 (1996) where the prosecutor argued that the jury would have to find the state’s witnesses lied in order to acquit. In Fleming the defendant had not testified, which the panel found accentuated the misconduct.

State v. Hart, No. 321880-6-III, decided June 18

Prosecution for second degree murder and second degree assault. Appellant argues the assault conviction must be vacated due to double jeopardy, and that his sentencing as a persistent offender violates the cruel punishment clauses of the state and federal constitutions. He also asks for vacation of the legal financial obligations imposed in his case.

The court finds the second degree assault had no independent purpose or effect and so orders it vacated as a violation of double jeopardy principles.

On the third strike issue, the court follows the recent Supreme Court decision in State v. Witherspoon, 180 Wn.2d 875, 887, 329 P.3d 888 (2014) and holds it is not unconstitutionally applied to a young(er) and mentally ill defendant.

The LFOs can be reconsidered by the trial court at the re–sentencing ordered as part of the court’s disposition.

State v. KHH, No. 45461 -1 – II, decided June 16

Prosecution for fourth degree assault, with sexual motivation. Teenager kisses and causes “hickies” on a friend’s neck, without her consent. The trial court orders him to write an apology letter as a sentence condition.

The COA panel agrees that there is sufficient evidence of fourth degree assault with sexual motivation, as the defendant tried to touch the girl on the breasts and get into her pants , as well as kissing and causing the “hickies.” His attack on sufficiency of the evidence relies on an interpretation of the facts which made consent somewhat more ambiguous.The court notes that reinterpreting the facts is not the standard on appeal.

The panel splits on the apology letter issue, with one judge finding it would violate the First Amendment to have this type of compelled speech.

State v. Elkins, NO. 44968-4-II, decided June 16

Prosecution for second degree felony murder by assault.

Issues: After a defendant has asserted his right to remain silent, do the police have to re-advise him of his rights before resuming interrogation after a period of time has passed?

The panel holds that neither Michigan v Mosely, nor State v. Brown, 158 Wn. App. 49, 240 P. 3d 1175 , nor State v. Boggs, 16 Wn. App. 682, 687, 559 P.2d 11 ( 1977) establish a bright line rule that Miranda warnings have to be readministered before a subsequent interrogation about the same crime.

The court distinguishes these cases because in Elkins’ case, the second police interrogation took place after Elkins was reminded by them that his rights were still in force. There also were no coercive tactics used. The court follows the four part test announced in State v. Mason, 31 Wn. App. 41, 44 -45, 639 P. 2d 800 ( 1982):

Further questioning of a suspect is allowed provided the following conditions exist: ( 1) the right to cut off questioning was scrupulously honored; ( 2) the police engaged in no further words or actions amounting to interrogation before obtaining a waiver or assuring the presence of an attorney; (3) the police engaged in no tactics which tend to coerce the suspect; and ( 4) the subsequent waiver was knowing and voluntary.

The court also rejects Elkins’ post–Andress attack on the constitutionality of the felony murder statute in the context of a second degree assault.

State V. Thornton, 32478-7-III,decided June 16, 2015

Prosecution for possession of heroin. The court imposed a $100 fee for DNA collection. This had been previously ordered in another case the defendant had, but there was no indication she had given the previous sample or paid for it. The COA affirms the order to give the sample and pay the $100 fee.

State v. Lazcano, No. 31601-7-III, decided June 16

Judge Fearing’s recitation of the facts in this felony murder case waxes lyrical.

Lazcano was convicted of first degree felony murder for going into a house to retrieve stolen property. His brother, waiting in back of the house, shot one of the thieves and killed him. Lozcano had, before the homicide was charged, been charged with first degree burglary for entering the house. This was reduced as part of a plea agreement to criminal trespass. The body of the thief had not been found at the time.

Lazcano argued at trial that the state was estopped from using burglary as the predicate felony, since he had pled to criminal trespass. He did not explicitly argue that the felony murder charge was barred by double jeopardy, at least as to the burglary prong.

On appeal, the court concludes the error was not preserved, and could not be raised under RAP 2.5 (a) either, because the appellant had not shown that the error was “manifest” although clearly constitutional in nature.

The court also dismisses an argument that the prosecutor improperly vouched for several witnesses by calling attention to the fact their plea agreements required “truthful testimony”, as not properly preserved by an objection.

The court also rejects a confrontation clause issue as harmless error, since other testimony duplicated the improperly admitted statement from Lazcano’s brother.

State v. Chenoweth, 71520-8-I Decided June 22

Prosecution for incest. Defendant objected to a statement by his spouse concerning their 19 year old “child.” He also objected to the admission of testimony by the police about the “allegations.” Finally, he argued that an instruction which told the jury that it did not require “corroboration” to convict was a comment on the evidence.

The panel reviews the spousal privilege/incompetency statute, and finds that the exception allowing statements concerning crimes committed against the children of the marriage applies even where the child is no longer a minor. No previous Washington cases were directly on point, and the statute itself does not define the term “child.” Definitional restrictions limiting “child” to “minors” in other parts of the statutes are not deemed controlling.

The statement about the allegations, which did not contain any specifics, was allowed to show why the police were investigating. The court does not allow this to be admitted under the so called “hue and cry” exception for sexual offenses because the statement was not made until a year after the alleged event.

The non–corroboration instruction, which is found in Title 9A.44, and which refers to prosecutions “under this chapter”, is permitted as a “correct statement of the law.” The WPIC committee has recommended against giving it, but the court does not find itself bound by the committee opinion, and follows fairly recent case law allowing the instruction, State v. Zimmerman, 130 Wn. App. 170, 182-83, 121 P.3d 1216 (2005).

State v. Flores, originally filed May 21, now published by order June 25, 2015, Division III, No. 32233-5-III

Judge Fearing’s opinion continues to show his prowess as a writer with a flair for colorful language.

Prosecution for unlawful possession of a firearm. Flores was walking with another man about whom the police had a tip that he was armed with a firearm, and for whom there was an outstanding arrest. The responding officer ordered both men to kneel, and separate while he awaited reinforcements. Both men complied. The companion was arrested, and Flores was detained while that took place. After the companion was arrested, a second officer ordered Flores to come to him, walking backwards, and Flores told him that he, Flores, had a gun. The police subsequently discovered he had a felony conviction which disqualified him from gun possession.

The trial court suppressed the evidence, reasoning that while the original detention was justified to control the scene of the arrest of the companion, it did not justify the pat down search of Flores after his companion was arrested.

The panel agrees, holding that the initial detention was justified, but not the pat down, since there was no individualized suspicion about Flores. His statement that he had the gun was a product of the illegally prolonged seizure.

State v. Castillo-Murcia, Division III, NO. 32168-1-III, decided June 25, 2015

Prosecution for luring, communicating with a minor for immoral purposes and indecent exposure. Defendant challenges his waiver of jury, and the sufficiency of the evidence on the luring count.

Defendant was known to the complaining witness only as the “ice cream” man, who had sold or given her ice cream on previous occasions. On the basis of this fleeting acquaintance, defendant argues he was not “unknown” to the witness, an element of the luring statute. The court holds that the “Unknown” element was met in this case despite some ambiguity about the meaning of the term.

Defendant signed a jury waiver in English, which was not his first language. His claim that he needed it interpreted in order for it to be valid was undercut by his apparent command of English at his sentencing and other points of his trial.The panel holds that the written waiver and oral colloquy were valid.

State v. Navarro, NO. 71126-1-I, decided June 29, 2015

Prosecution for communicating with a minor for immoral purposes and extortion. Defendant sent text messages to 11 boys inviting them to send him nude pictures and offering oral sex. The extortion counts were based on threats to some of the boys who cut off communication with him.

Issue: what is the expiration date for sexual assault protection orders and no contact orders entered in the case?

The court examines the statute that created sexual assault protection orders, RCW 7.90.150(6)(c), and concludes that they last two years after the expiration of the custody part of the sentence plus any post release supervision. The separate no–contact orders can last for 10 years, the maximum jurisdiction for the extortion counts.

State v. Hamedian, decided June 29, 2015. No. 71253-5-I

Motion to seal the juvenile file of former juvenile.

Hamedian had not paid the restitution ordered by the court, but the 10 years during which it could be enforced as a money judgment had passed. Hamedian argued that since the obligation could not be forcibly collected, it was not an obstacle to sealing.

The panel reviews the old sealing statute, and its 2014 and 2015 amendments and concludes that the trial court properly denied the motion to seal, because the statutory scheme made it a condition precedent to pay the restitution in order to get the file sealed. The court distinguishes adult Certificates of Discharge under the SRA, which can be granted despite not paying the financial obligations of a sentence, if the monetary judgment is not longer collectible. The different result is yet another of the differences in philosophy between adult and juvenile sentencing statutes, and the significant difference between file sealing and restoration of civil rights.

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