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October 2016 decisions


For Cases decided in October, 2016

Prepared by Mark W. Muenster


State v. Slert, No. 92310-8, decided October 27, 2016

This is the final round in several appeals of Slert’s murder conviction. After two previous reversals, the trial court took precautions about jurors who might have knowledge of the previous trials and convictions by doing a jury questionnaire. On the basis of the answers, there was a chambers conference and four prospective jurors were excused. Slert appeals from his exclusion from the chambers conference.

The court holds that he waived review of this issue by not objecting at trial, and than in any event, the error was harmless since the jurors who presumably had knowledge of his prior convictions were excluded from the panel.

State v. Trey M., No. 92593-3, decided October 27, 2016

Juvenile prosecuted for felony harassment (death threats). He made the statements the first time to his therapist, and then was asked to repeat what he said to a law enforcement officer. The threats were then somehow disclosed to the intended “victims”, who then predictably said they were “scared.”

The Supreme Court holds that recent US Supreme Court decisions such as Elonis v. United States,_U.S._,135 S.Ct. 2001, 192 L. Ed. 2d 1 (2015) and Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) both of which deal with threat type cases, do not affect our First Amendment jurisprudence and do not require a subjective intent to threaten requirement.

So the mental state required for conviction remains:

Knowingly making a “true threat” that a reasonable person would perceive as threatening.

The court also upholds the conviction against a sufficiency challenge.

But in closing, the majority tries to be nice about it:

“Finally, while the affirmance of Trey’s convictions is compelled for the reasons discussed herein, we acknowledge that this case demonstrates the need to explore how our criminal justice system responds to juveniles with mental health issues. Knowing what we know about adolescent brain development, we must find alternative means for managing their behavior and providing therapeutic treatment, instead of criminal prosecution. Trey M is a juvenile in crisis, and our criminal justice system must find ways to provide serious mental health care for such persons while holding them accountable rather than simply placing them inside our revolving door criminal justice system.”

Dissenting Justice Gordon McCloud would overrule the state court precedent on the objective mental state requirement as “incorrect and harmful”, noting that the mentally troubled teenager here was encouraged to bare his thoughts, and then was prosecuted when he did. The first paragraph of her dissent says it all.


State v. Young, NO. 32514-8-III, Decided October 4, 2016

Prosecution for first degree murder. Appellant argues that his trial lawyer was ineffective for stipulating to the admissibility of his taped confession. He argues that the statement would not be admissible under the corpus delicti rule.

COA holds that the statement in State v. Dow, 168 Wn.2d 243,227 P.3d 1278 (2010), relied upon by Young, the State “must … prove every element of the crime charged by evidence independent of the defendant’s statement,” is dicta, since there was no evidence in Dow other than the defendant’s statements. Here there was proof of a non-accidental shooting death, establishing both death and a criminal act behind it. So the IAC claim fails because the statement was admissible. The panel also notes there may have been a strategic reason for stipulating to the confession, but closer analysis reveals the defense could have made the same argument it did even if it had litigated the admissibility of the statement, since that would have taken place outside the presence of the jury.

State v. Smith, NO. 47205-8-II, decided Oct. 4, 2016

Prosecution for attempted first degree murder and first degree assault. Defendant found guilty after bench trial of attempted second degree murder and second degree assault. Part of the evidence supporting the attempted murder conviction was a voice mail, triggered when defendant used a land line to try to find his cell phone. The errant cell phone recorded some of the argument and fight between the defendant and his wife.

COA panel holds that this was a private conversation and that its recording, even though inadvertent, violated the Privacy Act, RCW 9.73 et seq. The panel points out that for the Act to apply, it does not have to be a third party recording the conversation. Admission of the recording was prejudicial because the trial judge expressly relied on statements the defendant made to show intent to kill.

State v. Barnes, NO. 33811-8-III, decided October 6, 2016

Division Three, with Judge Fearing writing another enjoyably literate decision, decides the burning question of whether a large riding lawn mower is a “motor vehicle” so that theft of a motor vehicle could be charged instead of ordinary second degree theft. You have to love the introductory quote from Wittgenstein’s work, Philosophical Investigations.

The court notes that the legislative history of the theft of a motor vehicle statute is replete with references to cars and automobiles as the reason for the new statute. While a lawnmower could be a motor vehicle for the purposes of DUI and other driving statutes, it is not for this variety of the theft statutes.

The court notes that the State still has the option of pursuing a garden variety second degree theft for this case, but that has lower sentencing consequences. The panel upholds the trial court’s dismissal of the theft of a motor vehicle charge.

State v. Sullivan, NO. 73217-0-I, decided October 10, 2016

Prosecution for second degree assault with a deadly weapon.

Issues: Aggressor instruction, defense instruction for multiple assailants, prosecutorial misconduct, juror who knew complaining witness, exceptional sentence to CCAP.

There was mixed evidence about whether the defendant’s conduct had provoked a belligerent response from the other two witnesses, so the court holds it was not error to give an “aggressor” instruction.

The panel holds that the defendant’s proposed instruction that the degree of force depends on whether there were multiple assailants was cumulative of the other self-defense instruction, and distinguishes State v Irons, 101 Wn. App. 544, 550, 4 P.3d 174 (2000).

The panel holds that it was not misconduct for the prosecutor to comment on defense testimony that suggested the defendant was afraid of a sexual assault from the two men she was struggling with since it was a reasonable inference from her testimony.

The panel holds that the trial court correctly did not exclude a juror who told the court he might know the complaining witness, either directly or through another person. The court’s discretion in questioning this juror, and the juror’s answers, showed no abuse of the courts discretion.

The trial court granted a downward exceptional sentence of no jail, but ordered the 12 month deadly weapon enhancement time to be served in CCAP, an alternative sentencing facility. The state cross-appealed the sentence. The panel holds that authorizing the service of the sentence at CCAP was forbidden by the Supreme Court decision in State v. Medina, 180 Wn. 2d 282 (2014). The court there held that CCAP was not “partial confinement” and consequently a person could not get credit for time served pretrial there towards an ultimate sentence. If CCAP had been “partial confinement” then the court could have used it here, since it was permitted to use partial confinement as a substitute for total confinement for sentence of one year or less under RCW 9.94A.680(1).

The conviction is affirmed, and the case is remanded for resentencing only.

State v. Ortiz, No. 32970-4-III, decided October 13, 2016

Prosecution for manufacture of marijuana. The police obtained a warrant based on observation of plants in a yard, from the observation point of a “cooperative neighbor.”

They serve the search warrant at 6:47 AM, and knock and announce 3 times within 6-9 seconds. Predictably, the occupants were asleep and did not make it to the door to let the police it, so they battered down the door.

No motion to suppress for violation of the “knock and announce” rule is filed, so the appeal is based on ineffective assistance of counsel.

The panel finds ineffective assistance of counsel because a motion based on its conclusion that a motion based on “knock and announce” should or would have been granted, and there was no tactical advantage for not making the motion.

The main usefulness of the case is that it collects and distinguishes 5 or 6 other cases where the search was upheld against a knock and announce challenge. The time of day, and the short period before entry were the key facts, and the absence of any indication that the occupants had heard the police and “impliedly refused” entry.

State v. Sullivan, No. 33142-3-III, decided October 13, 2016

Prosecution for second degree assault of a child. Appellant challenged the constitutional sufficiency of the charging document, which omitted the statutory element of reckless infliction of substantial bodily harm.

The panel reverses the conviction and remands with direction to allow refiling of the information, so the practical effect of the reversal is the prosecutor gets a second bite of the apple.

The panel first had to decide whether the “liberal” or “strict” standard for reviewing the information applied. They follow a Division Two case, State v. Phillips, 98 Wn. App. 936, 991 P.2d 1195 (2000) which holds that the liberal standard applies when the challenge is after the state rests, but before verdict. They decline to follow a Division One case, State v. Chaten, 84 Wn. App. 85, 87, 925 P.2d 631 (1996) , which held that the strict standard applied when the challenge was after the state rested but before verdict. So the stage is set for Supreme Court review if the state asks for review.

Under the liberal standard of review, the panel finds that since the missing term, “reckless” or “recklessly”, was completely omitted from the information, it could not be implied by any other language in the information. Consequently, the appellant does not have to show he was prejudiced by the missing language. That might have been hard here, since his lawyer referenced the reckless element in his opening statement.

State v. Hummel, No. 72068-6-I, decided Oct. 17, 2016

Prosecution for first degree murder. The defendant’s wife’s body is never found. His first conviction was reversed because of open trial violation. Defendant is convicted a second time. There were two crucial flaws in the state’s case in the second trial. They did not put on a jail house informant from the first trial who testified that defendant administered poison to his wife. Secondly, the state acquiesced in the defendant’s decision to go all or nothing on first degree murder. Defense counsel had offered instructions all the way down to manslaughter, and the judge refused those, so counsel withdrew his second degree murder lesser included and the state did not push the point.

The panel decision exhaustively examines all the evidence which supported the conclusion that Hummel killed his wife. There was lots of evidence of motive, and for years after her disappearance, he collected checks from the state of Alaska which were payable to her, for which he ultimately was prosecuted in Federal court. But as the panel notes, evidence of motive does not equal evidence of premeditation. Since the jury was not instructed on the lesser offense of second degree murder, and there was not sufficient evidence of premeditation, the remand order is for total dismissal.

State v Patterson, No. 33814-2-III, decided Oct. 20, 2016

Prosecution for disorderly conduct and interference with a court (RCW 9.27.015).

Patterson believed that some Stevens County officials had not complied with the law relating to taking, filing and bonding their oaths of office. He went to a session of the District Court and began to read, in a loud voice, his grievance. The judge tried to quiet him but failed, so she took a recess and called for deputies, who eventually arrested Patterson. Two other persons tried the same tactic. They were also “removed” from the courtroom, but the opinion does not tell us their fates.

Patterson argued that the disorderly conduct statute was constitutionally overbroad and was being applied to protected speech. The panel decision holds that the statute was not overbroad, and could have a valid limiting construction placed on it.The opinion relies heavily on Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584 (1972), which upheld a prosecution under a similar Kentucky statute. The decision also relies on Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 (1965) which basically states there can be restrictions on free speech, in order to protect public order in general.

In the unpublished portion of the opinion, the court upholds both convictions against sufficiency of the evidence challenges.

State v. Yokel, No. 47871-4-II, decided Oct. 18, 2016

Prosecution for possession of a controlled substance. Police enter a hotel room, and arrest defendant on a warrant. She had one Vicodin pill in her pocket. Her daughter had a prescription for the Vicodin. Defendant wanted to testify she was holding this pill for her daughter, because her daughter had already taken one, and they did not want her to overdose. The trial court excluded testimony about the valid prescription and refused to give an instruction on “vicarious” lawful possession (the “ultimate user defense”).

The panel reverses and remands. The statute defines an “ultimate user” as “an individual who lawfully possesses a controlled substance for the individual’s own use or for the use of a member of the individual’s household or for administering to an animal owned by the individual or by a member of the individual’s household.” The court holds as a matter of first impression that a defense should be recognized in Washington that the individual holding a drug for someone else who has a valid prescription for it is not illegally possessing the drug. Out of state cases with similar statutes were used to support this ruling. The court notes that to hold otherwise would criminalize routine care giving functions, such as a family member picking up a prescription for an ailing relative who is unable to pick it up herself.

State v. Hamilton, NO. 72516-5-I, decided October 24, 2016

Prosecution for second degree assault of a prison guard. This was a third strike case for the defendant. He presented a diminished capacity defense. His testifying psychiatrist was repeatedly asked on cross-examination about other experts’ opinions in his extensive medical records, on which his psychiatrist was not relying. Defense counsel’s objections were unavailing. The panel reverses, as the cumulative effect of the cross-examination deprived Hamilton of a fair trial. The trial judge, a former defense attorney, abused her discretion in allowing the impeachment under the guise of ER 703 and 705. As the panel put it, quoting a noted treatise, “Cross-examination that attempts to impeach by slipping in unrelied on opinions and conclusions without calling the experts to testify is improper.”

The controlling case in Washington is Washington Irrigation & Development Co. v. Sherman, 106 Wn.2d 685, 686-87, 724 P .2d 997 (1986).

The court also rejects the state’s other three arguments for allowing the impeachment:

The state argued that some of these were Hamilton’s own statements, and thus were statements of a party opponent. This was rejected because the statements were contained in other non-testifying doctor’s statements, and thus were double hearsay. Because the state never presented the examining doctor’s statements, they were likewise inadmissible. The claim the statements were admissible as business records also fails because they were never authenticated, and the records were themselves never offered as evidence.

The court also rejects the state’s contention that even if the testifying doctor did not rely on the statements in the record, it was entitled to impeach because the doctor should have relied on the records.

In the unpublished part of the decision, the court rejects Hamilton’s arguments that DOC interference with his right to counsel required dismissal under CrR 8.3.

State v Houser, No. 73311-7-I, decided October 24, 2016

Houser was charged with felony DUI. He was involved in a one vehicle accident. His defense was that another person, “Gary”, had been driving the car. “Gary” was not produced to testify at trial, and the prosecutor asked for and received a “missing witness” instruction, and used it during closing.

The panel reverses. “Missing witness” instructions should be allowed “very sparingly”, especially against defendants in criminal cases. In this situation, where the other driver would have had to incriminate himself (for violation of the hit and run statute, at the least), the witness was not peculiarly available to the defense, so one of the prerequisites for getting a missing witness instruction was…. missing.

Even though the evidence was sufficient to convict, it was not overwhelming, so the instructional error was prejudicial, requiring a remand for a new trial.

State v. Novick, No. 47688-6-II, decided October 25, 2016

Prosecution for eight counts of computer trespass and eight counts of recording private conversations.

Using a program called Mobile Spy, the defendant bugged his girlfriend’s phone and recorded conversations she had with others. She noticed he seemingly had information about her health care, and since he worked at Kaiser, she asked Kaiser to see if he was accessing her health care records. The Kaiser investigation discovered he went to the Mobile spy website frequently and downloaded material from it.

Novick argued there was not sufficient evidence that he affirmatively accessed the phone, as opposed to the software doing it semi-automatically. The court rejects the argument.

Novick also argued that the unit of prosecution for the trespasses and the recordings should be focused on the fact that it was one person’s recordings, and only one computer was accessed. The court rejects this argument and holds that the unit of prosecution is each entry into the computer and each recording.

In re Wolf, No. 47455-7-II, decided October 25, 2016

Wolf was charged with child rapes when he was sixteen and in foster care. These were automatically declined to adult court. He obtained a SSOSA sentence there, but the sentence was ultimately revoked. He directly appealed the revocation, but it was affirmed and additional LFOs were imposed.

This action is his subsequent PRP regarding the automatic decline for rape of a child first degree. Wolf argues that the automatic decline statute violates the Eighth Amendment. The panel sidesteps this question and decides the case on the basis that Wolf did not show prejudice, namely that he did not show that he would have been declined to juvenile court if the court had the chance to do that:

“Therefore, to show actual and substantial prejudice Wolf must establish that more probably than not the trial court would have elected to hear his case in juvenile court based on his youth if the automatic decline statute had not mandated that he be charged and tried as an adult. If not, the automatic decline statute had no effect on Wolf’s case.”

The panel also holds that because Wolf requested a SSOSA sentence, he cannot complain now that his youth was not taken into consideration at the sentencing hearing.

The panel also holds that Wolf’s challenge to the LFOs is time barred, since he did not challenge them within a year of their original imposition at the time of his SSOSA sentencing in 2008, although he did file his PRP within a year of the appellate court’s decision affirming the revocation of his sentence. And because the statute under which the appellate costs were imposed, RCW 10.73.160, does not require the appellate court to inquire about ability to pay, those amounts do not fall under the Blazina rule.

State v. Velezmoro, No. 73542-0-I, Decided October 31, 2016

Prosecution for possession of child pornography. The only issue in this case is restitution to the subject of the images. She sought $5000.00 in restitution, a portion of her actual losses (future wages, counseling, etc.).

Velezmoro makes several arguments, all rejected by the court. The first is that there is no “but for” causation between the victim’s injury and his possession of her images. There was evidence that her images had been widely broadcast across the internet, and she had already been awarded approximately $692,548 in restitution from Federal prosecutions.

The panel acknowledges that previous Washington cases have required “but for” causation, but follows instead the lead of the US Supreme Court in United States v Paroline, ___ U.S ___ , 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014). The Court there allowed restitution in a child pornography case on a sort of collective responsibility theory, but not specifically on the basis of joint and several liability. Because it is impossible to allocate specific damages due to each end viewer, each is responsible for some reasonable portion of the victim’s damages. The panel here analogizes this to the damage done by several different crop dusters who pollute a person’s land.

The panel also rejects challenges to the $5000 award based on differences between the federal and state restitution statutes, and that the damages were not “easily ascertainable”. The record showed the basis for a loss of approximately $246,658 so the $5000 is deemed to be a reasonable apportionment of the damages. The two statutes serve similar purposes, and although their wording is slightly different, it is not enough to make the Paroline decision inapplicable to this child pornography case.

In a final bit of irony, the court decides that Velezmoro is not liable for appellate costs, because he is indigent.

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