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Advance Sheet Summaries for WACDL

Prepared by Mark  W. Muenster

For cases decided  in June, 2020


Davison v. State, No. 96766-1, decided June 25, 2020

This is not a criminal case, per se, but was a lawsuit seeking a declaratory judgment regarding systematic violations of the right to counsel in Gray’s Harbor County Juvenile Court. The state Office of Public Defense and the State of Washington were the named defendants, but the county was not a party.

The court affirms the denial of the State’s summary judgment motion, but casts doubt on liability at least on the theories in the pleadings.

to prevail on this claim, we hold the plaintiff class must show that the current statutory scheme systemically fails to provide local governments, across Washington, with the authority and means necessary to furnish constitutionally adequate indigent public defense services. Further proceedings are needed below to determine the merits of that question, and we do not decide here whether a genuine issue of material fact exists.

But the other theory of liability is dismissed:

In contrast, the plaintiffs’ claims premised on the State and OPD’s knowledge of county-level failings must be dismissed.

The case is remanded for further proceedings.


State v. Gearhard, No 36046-6-III  decided June 4, 2020

Prosecution for witness tampering,  child molestation 3 and indecent liberties.

This is a partly published decision.

The police had the victim call the defendant to try to elicit incriminatory statements, a tactic the police called a “pretext” or “ruse” phone call. The police were listening in on the conversation, and also had a recording device going, although they claimed this was not intended to capture the defendant’s side of the conversation.

The trial court held that it was a private call covered by the Privacy Act, but held that the conversation was admissible  via one of the exceptions, “communications or conversations . . . which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.” The unlawful request, according to the trial court , was Gearhard’s request to the victim to lie about their brief encounter.

The Court of Appeals panel holds that the case was controlled by State v. Williams, 94 Wn.2d 531, 548, 617 P.2d 1012 (1980) which had narrowly construed the exception so that the catchall “unlawful requests or demands” phrase would not swallow the exception. The state argued Williams was wrongly decided, but was gently reminded that since it was a Supreme Court case, it was binding on the Court of Appeals. The panel holds that the statements were not within the exception and reverses the witness tampering conviction.

The jury had acquitted Gearhard on the indecent liberties charge, and was unable to agree on the child molestation charge. After the jury was discharged, Gearhard moved to dismiss because of a flaw in the jury instructions and the trial court granted the motion. The state cross–appealed the dismissal, and resolution of this issue this forms the unpublished part of the case. The panel upheld the dismissal on the basis that the state could not appeal the dismissal because of double jeopardy. The order dismissing the case was a judicial acquittal, and could not be appealed.

State v. Murray,  NO. 35035-5-III, decided  June 4, 2020

Prosecution for aggravated murder, three counts, attempted murder and arson.

The attempted murder charge is reversed for a charging document error, and the other counts are affirmed.

The published part of the decision resolves a Frye challenge to the type of electron microscope used. The panel rejects the Frye argument, holding that the relevant scientific community for Frye purposes is composed of those who are familiar with the scientific principle in question, not just the forensic scientific community.

In the unpublished portion of the opinion, the court systematically dismantles a number of claims of other evidentiary errors,  mostly on various  lack of preservation grounds.

State v. Glant,  published June  16, 2020 (state’s motion to publish granted), NO. 52142-3-II

This is a “Net nanny” case. Glant challenged the use of various text messages and emails he exchanged with the police decoy. The court rejects his  Privacy Act argument. The court holds that basically, if you communicate via email or text you have consented to the other party having a record of the conversation, which is one of the exceptions to the statute’s protection of private conversations.

The court also rejects an argument based on Art. I §7 of the State constitution, holding that a  person  assumes the risk that a conversation with another person might be a state agent. So there was no reasonable expectation of privacy.

The panel also rejects an argument that the Net Nanny scheme amounted to outrageous government misconduct. The decision analyzes the factors for evaluating this issue from State v. Lively, 130 Wn.2d 1, 19, 921 P.2d 1035 (1996) and concludes that the factors favor the state, not the defendant. The standard of review for denial of a motion of this type  is abuse of discretion, so the result was almost inevitable.

The court also rejected a challenge to the sentence, which was within the standard range. A standard range sentence cannot be successfully challenged on appeal unless it can be shown the court refused to exercise its discretion to consider a sentence below the range, or improperly concluded it did not have authority to do so. The record indicated the court clearly considered and rejected a sentence below the range based on  Glant’s age and impulsivity.

State v. Spokane District Court,  No. 36506-9-III decided June 9, 2020

Appeal of writ of review by Superior Court, which had reversed the District Court’s decision to allow the necessity defense in a civil disobedience case involving blocking an oil train in Spokane.

The majority holds that in order to get an instruction on the common law necessity defense, a person has to have no legal remedy. In other words, if you have tried to lobby the legislature unsuccessfully on an issue, try, try again, because you will not be able to do an act of civil disobedience to get their attention for the issue.

This opinion directly conflicts with a Division I decision upholding the use of the necessity defense, so the issue seems bound for the Supreme Court.

The other part of the decision holds that the newer version of the “change of judge” statute barred the motion for change of judge since the judge had already made a decision in the case, albeit one in an ex parte filing.

There is an elegant dissent by Judge Fearing on both issues. He points out that the majority’s test for whether the fourth factor for a necessity defense is met will never allow the defense to be presented. He views the fourth factor as a jury question instead.

State v. Martin, decided June 15, NO. 78958-9-I

Prosecution for possession of a controlled substance. Martin was apparently asleep in a Starbucks, and the employees called police to see about removing him.  Police pat him down when he was unresponsive, then remove a metal object that turned out to possibly be drug paraphernalia. That led to a search of his pockets, which yielded some drugs.

COA panel holds this is not  a legitimate Terry stop/frisk, and not an search allowed under “community caretaking”, and reverses the conviction.

State v Case, NO. 52464-3-II, decided June 23, 2020

Prosecution for fourth degree assault and harassment. The defendant’s girlfriend made a written sworn statement to the police. She recanted her statement at trial. The written statement was admitted. The state also called a mental health professional to testify generally why victims recant.

Case argued that his cross–examination of the victim was improperly restricted, and also that the court erred in allowing the MH professional to testify regarding the topic of recanting witnesses. He was hampered in the second argument because there was no objection to the testimony, so he had to rely on RAP 2.5 and show manifest constitutional error. The court held that it was constitutional, but not a manifest constitutional error.

He also made a parallel IAC claim based on the failure to object.

The court holds that the restrictions on cross–examination were error, but harmless under the non–constitutional standard. The court also holds that the expert testimony on recantation in general was not improper opinion testimony. Since it was not improper, the IAC claim failed because it was not deficient performance.

In reaching its conclusion, the court explicitly overrules State v. Thach, 126 Wn. App. 297, (2005) which had reached the opposite conclusion on offering expert testimony about recantation when the victim has testified.

Their bottom line:

Expert witnesses may testify on general characteristics or conduct typically exhibited by survivors of domestic violence. We reaffirm that such testimony must not state that a specific victim witness exhibits the responses or characteristics of a crime victim or state the expert’s opinion of the victim’s credibility.

State v. Lake, NO. 52204-7-II, decided June 30, 2020

Prosecution for various theft offenses, in particular organized retail theft in the second degree.

The court reverses the organized retail theft count because the state did not prove there was theft from a “mercantile establishment” when Lake ordered “gifts” online using other person’s accounts.

“Mercantile establishment” is defined in the statute, and the wording used convinced he court it probably applied to brick and mortar stores, but it was ambiguous. The legislative history did not help in resolving the ambiguity. So the court applied the rule of lenity and vacated that conviction, but upheld all her other charges.

State v. Rawley, Filed June 30, 2020, No. 52344-2-II


This was an earlier unpublished decision, and the court grants a  State’s motion to publish.

Prosecution for felony DUI, after a head on collision. Rawley had crossed the center line, and smelled of alcohol when the police and EMTs arrived. The EMTs wanted to take her to the hospital and also start an immediate IV. The police obtain a warrantless blood draw before the IV is started.

The panel holds that the warrantless blood draw was justified by exigent circumstances. The police testified it could be 45 minutes before they could get a warrant, and they did not know if the IV would change the blood alcohol composition in the meantime. She might also be getting medications.

The holding follows the logic of State v. Inman, 2 Wn. App..2d 281, 409 P.3d 1138 (2018), a motorcycle accident case (vehicular assault) with similar medical facts.



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