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The Supreme Court issued per curiam opinions in two criminal matters today. 

State v. McKague, No. 85657-5. The Supreme Court upholds a second degree assault conviction but clarifies the definition of “substantial bodily harm.” Jay McKague shoplifted a can of smoked oysters from Kee Ho Chang’s convenience store. Chang followed McKague out of the store and confronted him in the parking lot. A scuffle took place, during which McKague punched Chang in the head several times and pushed him to the ground, causing Chang’s head to strike the pavement. Chang was diagnosed with a concussion, a scalp contusion and lacerations, head and neck pain, and lacerations on his arm. Police photographs taken three days after the assault showed bruising around Chang’s eye.

McKague was eventually convicted of third degree theft and second degree assault. On appeal, a question was raised as to the sufficiency of the evidence of “substantial bodily harm” done to Chang. Second degree assault is defined as when the defendant intentionally assaults another and thereby recklessly causes “substantial bodily harm.” RCW 9A.36.021(1)(a). The Court of Appeal relied on to a dictionary definition of the term “substantial” as including “something having substance or actual existence.” The Supreme Court ruled that this definition would make practically any injury “substantial” no matter how minor. The Supreme Court indicated that substantial harm should be considerable. Nevertheless, the court upheld McKague’s conviction.

State v. Robinson, No. 83444-0. The Supreme Court allows a defendant to withdraw a guilty plea upon discovering that past offenses would count against his offender score. Chucco Robinson was charged with first degree attempted rape, burglary, and kidnapping. He erroneously believed that earlier juvenile convictions no longer counted toward his offender score. Based on this, he pleaded guilty. Later Robinson learned that his juvenile convictions would count toward his offender score and would increase the sentencing range. Robinson “immediately” sought to withdraw his plea. The trial court determined that Robinson’s plea was not made knowingly, voluntarily, and intelligently, given his reasonable misunderstanding. The State contended on appeal that the trial court based her discretion by allowing the plea withdrawal. The Supreme Court held that the ruling was within the discretion of the trial court, and remanded for further proceedings.

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The Supreme Court issued opinions in three cases today.

Humphrey Indus. LTD v. Clay St. Assocs. LLC, No. 82687-1. Humphrey Industries, Ltd. (through several business partners) created Clay Street Associates, LLC, to hold a single real estate asset located in Auburn, Washington. In order to break a deadlock with principal George Humphrey regarding the sale of the property, the other members of Clay Street agreed to merge the company into a new limited liability company to facilitate the sale. Humphrey dissented from the merger and demanded payment pursuant to the dissenters’ rights provisions of the Washington Limited Liability Company Act, chapter 25.15 RCW. Clay Street agreed to pay Humphrey the fair market value of his interest as of the merger date but did not pay until the property sold.

Humphrey rejected the value calculation and sued. The trial court found that the property was worth more than Clay Street had calculated, and awarded Humphrey the difference plus interest. However, the court awarded Clay Street attorneys fees, finding that the dissenting Humphrey had acted arbitrarily, vexatiously, or not in good faith. The Court of Appeals (Div. I) affirmed.

The Supreme Court (Justice Jim Johnson writing) reversed the Court of Appeals and remanded for reconsideration of the attorney fee award. The court held that the lower courts erred in finding that Clay Street “substantially complied” with the LLCA.

In re Custody of S.C.D.-L., No. 84186-1. In a per curiam decision, the Supreme Court reversed a trial court’s order awarding custody of S.C.D-L. to her grandmother, Edna Littell. The court wrote that Ms. Littell failed to allege or offer facts at the show cause hearing conducted under RCW 26.10.030 that S.C.D-L. was not in the physical custody of one of her parents or that neither parent was a suitable custodian.

“A nonparent may petition for custody of a child if the child is not in the physical custody of a parent or if the petitioner alleges that neither parent is a suitable custodian. RCW 26.10.030(1). The trial court must deny a hearing on the petition unless the nonparent submits an affidavit (1) declaring that the child is not in the physical custody of one of the child’s parents or that neither parent is a suitable custodian and (2) setting forth facts supporting the requested custody order. S.C.D-L. was in [her father] Mr. Littell’s physical custody at the time Ms. Littell filed her petition, and the petition
does not allege that he is an unfit parent. Instead, the petition implies it would be in the child’s best interest to reside with Ms. Littell, but the ‘best interests of the child’ standard does not apply to nonparent custody actions."

State v. Patel, No. 82649-8. The Supreme Court upheld a conviction for attempted child rape where the “victim” was actually a police officer posing as a child.

Mitel Patel was caught in a police sting operation when he chatted with a detective pretending to be a 13-year-old girl and went to meet and have sex with “her.” He was convicted of second degree attempted rape of a child. Patel argues that the state did not offer proof that the intended victim (the detective) was underage, and thus did not prove an essential element of the attempted crime. The trial court and Court of Appeals disagreed, holding it sufficient that Patel believed his intended victim to be underage.

The Supreme Court (Justice Tom Chambers writing the four-vote lead opinion) agreed, holding that “a defendant may be convicted of attempted rape of a child where the alleged victim is a fictitious underage character created by the police.” The court reasoned that unlike convictions for actual child rape, which require a showing that the child was underage, attempt crimes do not depend on the ultimate harm that would have resulted from commission of the crime. Rather, the person is guilty of an attempt “if, with intent to commit a specific crime, he or she does any act which is a substantial step toward the commission of that crime.” RCW 9A.28.020(1).

Chief Justice Madsen and Justice Richard Sanders wrote separate concurring opinions.

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In re Det. of Pouncy, No. 81769-3 (briefs and argument). Curtis Pouncy has a long incarceration history after several sexual assaults. In 2003 the state filed a petition to have Pouncy committed as a sexually violent predator. In order to establish an individual is an SVP, the state must prove the person “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.” Defense counsel proposed a jury instruction defining “personality disorder” but the trial court rejected the instruction and no other guidance defining “personality disorder” was offered the jury. The defendant also objected to the court’s decision to permit the state to attack the credibility of the defendant’s psychological expert.

The Supreme Court, with Justice Debra Stephens writing, held that the trial court erred by refusing to instruct the jury on the meaning of “personality disorder.” At the time of Pouncy’s trial, this phrase was not defined by statute, though the legislature later supplied a definition. The Court wrote that the phrase is not one of common usage and requires definition to ensure jurors are not forced to define the term based on their collective understanding.

The Court reversed Pouncy’s SVP determination and ordered a new commitment trial. The Court also held that the impeachment evidence the state introduced against the defendant’s expert witness was inadmissible and should not be used on retrial.

Chief Justice Barbara Madsen wrote separately, concurring with the Court’s order for retrial. She however, wrote that the inadmissibility of the impeachment evidence was enough to justify a new trial, and she disagreed with the Court’s analysis of the personality disorder issue.

UPDATE: Nina Shapiro at the Seattle Weekly has this article criticizing the Court's decision in Pouncy's case.

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The Supreme Court today decisively ruled that sentencing enhancements for the possession of a weapon during the commission of a crime are not constitutionally prohibited. The case is State v. Aguirre, No. 82226-3 (briefs and argument).

Daniel Aguirre was convicted in Thurston County Superior Court of assault and rape. He unsuccessfully appealed to the Court of Appeals (Div. 2), arguing that a number of errors occurred at trial. Aguirre argues the trial court committed a number of errors, and argues that the deadly weapon enhancement to his sentence for assault with a deadly weapon violates double jeopardy. The double jeopardy clauses of both the federal and state constitutions protect defendants from being twice put in jeopardy for the same crime.

The Supreme Court, with Justice James Johnson writing the unanimous opinion, rejected all of Aguirre’s claims. On the double jeopardy issue the Court said: “Washington courts repeatedly have held that double jeopardy is not offended by weapon enhancements even when being armed with the weapon is an element of the underlying crime.”

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Today the Court will hear its normal four arguments, two in the morning and two in the afternoon. (Docket, briefs)

Morning session

Hudson v. Hapner, No. 82409-6. At what point can a party withdraw a request for a civil trial? That's the procedural question before the Court in this case.

Clifford Hapner rear-ended Lea Hudson, and Hudson sued for damages. The case went to mandatory arbitration where Hudson was awarded $14,538. After mandatory arbitration a party can request a trial before the superior court, which Hapner did. But the jury awarded Hudson $292,298. Hapner appealed, and the appellate court remanded the case for a new trial.

After discovery for the second trial, but before the trial took place, Hapner filed a notice of withdrawal of his motion for a trial. This would allow him to pay only the arbitration award, plus Hapner's court costs. The trial court struck the withdrawal at Hudson's request, but the Division Two Court of Appeals reversed, disagreeing with Hudson's argument that court rules include a time limit for withdrawal after a trial takes place.

State v. Osman, No. 82671-4. The question before the Court is what legal standard superior courts should use to review lower court rulings on the importance of missing trial records.

Abdinasir Osman was arrested and convicted for DUI. After the trial, Osman's attorney discovered that part of the trial had not been recorded. The missing portion included part of Osman's cross examination, objections to an exhibit, attorney arguments, and the judge's findings and conclusions.

A party in a district court is entitled to a new trial if a “significant or material portion” of the electronic recording is lost. Osman appealed to the superior court for a new trial, which remanded the question of whether the missing record was material back to the district court. The district court found that the missing portion was not material.

The superior court fully reviewed the district court's decision, concluded that the missing portion was material, and ordered a new trial. The state appealed, and the Division One Court of Appeals reversed the superior court, concluding that the superior court should only have looked at whether the district court overstepped its bounds in making the decision (abuse of discretion), rather than taking a whole new look at the question of materiality.

Afternoon session

State v. Hall, No. 82558-1. This case concerns whether multiple attempts to tamper with a witness can be prosecuted as multiple crimes.

Isiah Hall was charged with burglary, and Desirae Aquiningoc was called as a witness. Before the trial, Hall called Aquiningoc several times from prison and tried to get her to lie at the trial or to go into hiding. Hall was convicted of multiple counts of witness tampering.

Hall argues on appeal that all of his calls were part of a single case of witness tampering, and that convicting him multiple times violates double jeopardy. The Division One Court of Appeals disagreed, holding that each attempt to get Aquiningoc to lie or hide was a separate case of tampering.

State v. Jones, No. 82613-7. In this case, the Court will consider whether the rape shield statute bars testimony about contemporaneous sexual behavior for the purpose of proving consent.

Kashauna Dixon claimed that she was raped by her uncle, Christopher Jones. Jones admitted to having sex with her, but claimed that she consented. According to Jones, they were having a party with several others that included alcohol, sex, and drugs.

Based on Washington's rape shield statute, the trial court barred Jones from testifying about the party. Jones appealed, arguing that the statute only prohibits testimony about “past sexual behavior,” and that he wanted to testify about sexual behavior contemporaneous with the alleged rape. The Division Three Court of Appeals held that past behavior can refer even to the very recent past, and that even if the rape shield statute didn't apply the evidence would have been inadmissible because it would have unduly prejudiced the jury against Dixon.

Jones also appealed on other due process grounds, including the prosecutor's statement to the jury that Jones refused to submit to warrantless DNA testing.

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State v. Williams-Walker, No. 78611-9, consolidated with State v. Graham and State v. Ruth (briefs and arguments). Under the Sixth Amendment to the U.S. Constitution and article I, sections 21 and 22 of the Washington Constitution, the right to a jury trial requires that sentences be authorized by the jury’s verdict.

State law allows criminal sentences to be enhanced with additional incarceration if a firearm or deadly weapon is used in the commission of the crime. Where there is a finding that a deadly weapon was used, a two-year enhancement is authorized. Where the jury specifies that a firearm was used, a five-year enhancement is available.

In each of the three cases reviewed today, the juries were given special verdict forms for a deadly weapon enhancement, and they returned answers in the affirmative, but the trial courts each imposed the more severe five-year sentence enhancement.

The Supreme Court has previously stated that a defendant's right to a jury trial is violated if a firearm enhancement is imposed with the jury explicitly authorizing it. The cases today address a more nuanced question: whether a trial court can impose a firearm enhancement in the absence of a jury finding by special verdict that the defendant used a firearm, where the juries only authorized the less punitive deadly weapon enhancement.

The State argues that the firearm enhancement should be permitted in two of the cases as the juries found, through their guilty verdicts, that the defendants committed the crimes using a firearm. Ruth and Graham were both charged with first degree assault with a firearm, and a conviction requires the jury to find that a firearm was used.

The Court disagreed. “We decline to hold that guilty verdicts alone are sufficient to authorize sentence enhancements. If we adopted this logic, a sentencing court could disregard altogether the statutory requirement that the jury find the defendant's use of a deadly weapon or firearm by special verdict. Such a result violates both the statutory requirements and the defendant's constitutional right to a jury trial.”

In a 6-3 decision written by Justice Charles Johnson, the court vacated the enhanced sentences and remanded the cases for resentencing. Justice Mary Fairhurst and two others dissented.

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State v. Webb, No. 81314-1 (briefs and argument). Seattle radio personality Mike Webb was convicted of filing a fraudulent insurance claim in 2007 and was ordered to pay certain financial penalties. He filed a timely notice of appeal. While the appeal was pending Mr. Webb was tragically murdered and his body was discovered in the crawl space under his home about two months after his death. Mr. Webb’s attorney filed a motion in the Court of Appeals to abate the appeal and the underlying conviction and financial obligations. The Court of Appeals denied the motion, relying on past cases that dealt with the death of a criminal defendant.

The Supreme Court reviewed the question to determine whether the deceased defendant’s right to appeal requires that the conviction be abated. The Court held that appellate rules allow for the substitution of parties on appeal, which would be the appropriate method for heirs to challenge any financial obligations imposed on the defendant. Consequently, the Court ruled that as Mr. Webb died during his appeal, his heirs could be substituted. If no motion for substitution is filed, the Court directed that the appeal be dismissed and the conviction and all financial obligations shall remain in effect. 

The Court reversed the Court of Appeals and remanded the case to allow for a substitution of parties. Justice Barbara Madsen wrote the opinion of the Court. Justice Richard Sanders dissented, criticizing the practical difficulties the decision created. “Obviously the substituted heir would not be subject to the same criminal penalties of the deceased defendant, and therefore, it is a stretch to say that ‘the interest of a party in the subject matter of the review has been transferred.’”

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State v. Kenyon, No. 81374-4. On February 15, 2006, James Ryan Kenyon was charged with six counts of unlawful possession of a firearm and was incarcerated while awaiting. After multiple delays his case eventually went to trial in August—well beyond the time limits provided by the speedy trial rule (CrR 3.3).

A defendant who is detained in jail must have a trial set within 60 days of arraignment. If a defendant is not brought to trial within the rule’s time limits, the court must dismiss the charges with prejudice so long as the defendant objects within 10 days after notice of trial date is mailed. Some periods of time are excluded when computing the date for trial. For example, continuances granted by the court are excluded, as well as “unavoidable or unforeseen circumstances” that are beyond the control of the court or of the parties.

Kenyon argues his right to a speedy trial was violated as no court was available to hear his case. The State argues the trial court properly followed the scheduled and that his attorney asked for many continuances. The trial court held the delay was “unavoidable” as the judge was presiding over another case and the other judge was on vacation. The Supreme Court however, has said that courtroom congestion—as opposed to scheduling conflicts or trial preparation—is not a valid reason for delay.

The Court determined that despite the allowance for “unavoidable or unforeseen circumstances,” the speedy trial rule still requires trial courts to document the details of unavailable judges and courtrooms. The failure to do so in this case violated Kenyon’s right to a speedy trial and the Court dismissed the charges with prejudice.

Justice Richard Sanders wrote the majority opinion. Justice Tom Chambers filed a separate opinion concurring with the result.

State v. O'Hara, No. 81062-1. Ryan O’Hara was charged with second degree assault after getting into a fight with an acquaintance, Jeffrey Loree. O’Hara argued that he acted in self defense. Loree had gained possession of the keys to O’Hara’s car. At trial, O’Hara argued he acted in self-defense. O’Hara testified that he repeatedly asked Loree for the keys to the car. He attempted to reach for the keys and Loree punched him in the forehead, at which point the two began exchanging blows.

At trial the court provided the jury with instructions regarding second degree assault, with additional details about the definition of “malice.” O’Hara was convicted as charged.

On appeal, O’Hara challenged his conviction, arguing that the trial court provided the jury with an incomplete definition of “malice.” O’Hara had failed to object to this instruction at trial and raised the issue for the first time on appeal. A party on appeal is permitted to raise new issues of “manifest error affecting a constitutional right.”

The Supreme Court, with Justice Mary Fairhurst writing the opinion, said that O’Hara could not demonstrate that the trial court’s alleged error was not of a constitutional magnitude or manifest. By failing to object to the instruction he failed to preserve the issue for review, and could not raise the issue for the first time on appeal. Justice Sanders filed a dissent. While he agreed that a “manifest error affecting a constitutional right" should be reviewed on a case-by-case basis, he argued that O’Hara’s constitutional rights were violated by the trial court’s jury instruction.

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State v. Eriksen, No. 80653-5 (briefs and arguments). The state Supreme Court says that tribal police officers can pursue motorists beyond the limits of tribal lands after having observed them commit a traffic infraction on the reservation.

A Lummi Nation Police Department officer witnessed a motorist on the reservation driving at night with high beams and drifting across the center divider. He began following the vehicle and activated his emergency lights. After traveling a quarter mile the car pulled into a gas station located off the reservation. The police officer witnessed the driver, Loretta Eriksen, hop over the car’s center console and into the passenger’s seat. The officer detained Eriksen until a Whatcom County police deputy arrived, who arrested her for DUI.

Ms. Eriksen was convicted for DUI. The trial court said Lummi Nation’s inherent sovereign power authorizes tribal police to continue in “fresh pursuit” of offenders who drive off the reservation. The Supreme Court agreed to hear the case to resolve this issue of first impression.

The Supreme Court said that the Lummi Nation is a sovereign nation with inherent authority to enforce its laws and detain Indians or non-Indians who violate those laws. Courts have long recognized the right of law enforcement officers to cross jurisdictional lines when in hot pursuit of a violator. The court said this doctrine should apply to sovereign tribal nations as well. “The Lummi Nation Police Department has authority under the Lummi Nation’s sovereign authority and under the Washington Mutual Aid Peace Officers Powers Act of 1985, chapter 10.93 RCW, to enforce its laws by continuing the ‘fresh pursuit’ of suspects off the reservation and then detaining these suspects until authorities with jurisdiction arrive.”

Justice Richard Sanders wrote the unanimous opinion of the court.

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Dot Foods, Inc. v. WA Dep’t of Revenue, No. 81022-2. Illinois company Dot Foods sells consumer products such as dry foods, sauces, and refrigerated foods to a subsidiary, which sells the products to Washington customers which in turn use Dot products as ingredients for products that are later sold to grocery stores and other retail outlets.

For years Dot Foods qualified for an exemption from the Washington business & occupation tax as an out-of-state seller. In 1999, the state Department of Revenue amended its interpretation of the qualifications for the out-of-state exemption. In order to qualify for the exemption, out-of-state sellers could never sell any consumer products that anyone will eventually sell in a permanent retail establishment anywhere in the chain of distribution. The Department of Revenue then determined that Dot Foods should pay the B&O tax for sales that occurred between 2000 and 2003. Dot paid the tax and then filed suit against the Department to recover a refund.

The Department argued that Dot should not qualify for the B&O tax exemption because its sales included non-consumer products, and some products eventually ended up in permanent retail establishments. The trial court ruled in the Department’s favor. The Court of Appeals affirmed the trial court, holding that Department’s new interpretation of the statute was reasonable.

The questions before the Supreme Court are (1) whether an out-of-state seller qualifies for the B&O tax exemption when it sells some non-consumer products, and (2) if so, does such a seller qualify for the B&O tax exemption when some of its products ultimately end up in permanent retail establishments?

The Supreme Court, with Justice Charles Johnson writing the 5-vote majority, ruled in favor of Dot Foods. The court said that the law (RCW82.04.423(1)(d) requires out-of-state sellers to make sales “exclusively” through a seller’s representative, but that “exclusively” does not mandate that all sales consist of consumer products. Additionally, the court rejected the argument that Dot loses its exemption because some of its products end up in retail stores. “The wording of the statute has not changed since its enactment; only the Department’s interpretation and application of the statute have changed. Considering the foregoing, we reject the Department’s interpretation. To do otherwise would add words to and rewrite an unambiguous statute.”

Justice Johnson took the Department of Revenue to task for its argument that its interpretation of the statute is entitled to judicial deference. “The Department’s argument for deference is a difficult one to accept, considering the Department’s history interpreting the exemption. Initially, and shortly after the statutory enactment, the Department adopted an interpretation which is at odds with its current interpretation. One would think that the Department had some involvement or certainly awareness of the legislature’s plans to enact this type of statute.”

Justice Debra Stephens and three other justices dissented, writing that the out-of-state exemption from the B&O tax should be interpreted narrowly and that by allowing Dot Foods to claim the exemption the majority decision “expands the exemption well beyond its intended scope.”

State v. Heddrick, No. 80841-4. In 2004, Steven Ray Heddrick, Jr., was charged with felony harassment. While awaiting trial, Heddrick was allegedly involved in an altercation with jailhouse staff, which resulted in a subsequent charge of custodial assault. Concerns about Heddrick’s competency for trial arose several times. Eventually the trial court determined that Heddrick was competent to stand trial without conducting an evidentiary hearing, without having written competency evaluations, and without entering a written competency order. Heddrick argues that the trial court failed to follow proper procedures in declaring him competent to stand trial, and that he was denied a lawyer during the competency hearing.

The Supreme Court ruled that Heddrick, through his appointed counsel, waived completion of the statutory competency procedures. Additionally, the court ruled that Heddrick did not suffer a complete denial of counsel during a critical stage in the proceedings. Justice Susan Owens wrote the unanimous opinion.

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State v. Bobenhouse, No. 81413-9. Phillip Bobenhouse was convicted on multiple counts of first degree rape of a child and first degree incest based on evidence that he forced his two minor children (referred to as “John” and “Jane”) to have sexual intercourse with each other and that he committed sexual acts with his son. The trial court imposed a sentence of up to life with an exceptional minimum sentence of 600 months on each rape count, to run concurrently. The Court of Appeals affirmed the convictions and the exceptional minimum sentence imposed by the trial court.

A unanimous Supreme Court, with Justice Charles Johnson writing the opinion, rejected all of Bobenhouse’s claims.

Bobenhouse argued that no crime could have occurred by forcing his two children to have sexual intercourse with each other as both children were less than eight years old and incapable of committing a crime, under the statute. He argued that under the statute it is not a crime for a person to force (and watch) two children to have sexual intercourse with each other.

The Court rejected this argument, noting that a person can be convicted as a principal. The Court said that implied in the statute dealing with the rape of a child is that the perpetrator is defined as one who causes the other person to engage in the act amounting to rape of a child in the first degree. “Had Bobenhouse engaged in this conduct himself, it would have constituted the crimes of rape of a child in the first degree and incest in the first degree. Put otherwise, because of his legal accountability for John and Jane, Bobenhouse was the “perpetrator” in this case and, therefore, was acting as an accomplice in committing first degree rape of a child and incest against John and Jane.

Bobenhouse also argued that the trial court erred by failing to provide the jury with a unanimity instruction regarding the rape of John directly by Bobenhouse. (In order to convict a person of a criminal charge, the jury must be unanimous that the defendant committed the criminal act.) The Court determined that the trial court’s failure to instruct the jury on the unanimity was a harmless error that did not warrant reversal.

Bobenhouse finally argued the trial court erred by imposing an exceptional minimum sentence, and that it was error for the trial court, rather than the jury, to determine the aggravating factors. The Court noted that it previously held that case law “does not prohibit judicial fact finding when the trial court imposes either an indeterminate sentence of life or a minimum sentence within that life sentence.”

State v. Kyllo, No. 81164-4. This case arises out of Division Two Court of Appeals, and concerns whether Kyllo received effective counsel in his trial for second degree assault of a fellow inmate. Kyllo appealed on the grounds that his attorney made several errors, primarily related to jury instructions about his self-defense claim.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, defendant Kenneth Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense. Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal Kyllo asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion. The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured—“One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

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In re Pers. Restraint of Mattson, No. 81324-8. In a 6-3 decision authored by Justice Madsen, the Court determined that the state law which allows criminals to be released early under an approved "community custody plan" does not create a due process liberty interest. Therefore, a Department of Corrections policy that no sexually violent predators can be released early under a community custody plan does not violate due process.

Mark Mattson had been convicted of multiple sexual crimes and sentenced to ten years in prison. During the latter half of his imprisonment, Mattson submitted six different community custody plans for his early release. The final such plan was denied by the Department of Corrections on the basis that there was simply no plan that could ensure the safety of the community against sexually violent predators. A DOC psychiatrist had concluded that Mattson fell into this category, so the DOC did not review the merits of his proposed plan.

The Court of Appeals ruled for Mattson, holding that the statute setting up the community plan option created a due process right, so his plan had to be reviewed on its merits. Madsen's decision reverses the Court of Appeals.

Chief Justice Alexander dissented, agreeing with the Court of Appeals that Mattson's plan should have been reviewed on its merits, and not rejected simply due to a broad policy directive. Justices Sanders and Chambers joined him.

The decision is one of public interest only, as Mattson has already served his maximum sentence, and therefore the case is moot as it relates to his incarceration.

State v. Rivera-Santos, No. 81445-7. In a unanimous opinion written by Justice Fairhurst, the Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent, and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime.

Fairhurst wrote that convicted Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime. He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

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The Supreme Court of Washington will issue opinions in two cases tomorrow: 

In re PRP of Brooks, No. 80704-3 (briefs and argument). Whether the trial court can deliver a sentence where the total time in prison and in community custody potentially exceeds the statutory maximum. Jeffrey Brooks was convicted of three counts of attempted first-degree robbery and one count of residential burglary. These are all class B felonies, with a maximum sentence of 10 years in prison. Brooks was sentenced to 10 years of imprisonment, followed by a period of community custody of 1.5 - 3 years, for each of the four felonies. Brooks claims that this sentence is unlawful because the total time of imprisonment and community custody exceeds the statutory maximum of 10 years.

State v. Hughes, No. 81270-5 (briefs and argument). Whether separate convictions (for second-degree rape and second-degree rape of a child) for the same act constitute double jeopardy. Defendant Raymond Hughes pled guilty to sexual intercourse with a 12-year-old girl he had been hired to nurse. The girl was dying of cerebral palsy. Hughes appealed on the grounds that the two convictions violated his constitutional right against double jeopardy, because both were based on one act of sexual intercourse, and both involve the same basic element (a victim’s incapacity to consent). The Court of Appeals upheld the conviction.

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McAllister v. Bellevue Firemen’s Pension Board, No. 81187-3.  David and Ken McAllister were firefighters for the City of Bellevue. Both made pension contributions for many years under the Firefighters’ Relief and Pensions Act of 1955. When the men retired, the 1955 Act had been replaced by the Law Enforcement Officers’ and Fire Fighters’ System Pension Plan of 1970. Under the more recent 1970 plan, the city is required to pay the McAllisters the difference, if any, between their benefits under LEOFF and what their benefits would have been had they retired under the 1955 Act. The City later determined it had made an excess payment to the McAllisters of approximately $500,000 by relying on definitions contained in LEOFF, rather than the 1955 Act. Upon discovering this, the City began paying a reduced excess payment, but did not seek a reimbursement. The McAllisters challenged the reduced payment. The Supreme Court unanimously upheld the City’s action, with Justice Debra Stephens writing the opinion. “The plain language of RCW 41.26.040(2) further requires that an excess payment be calculated under the prior retirement system, not under LEOFF,” she wrote. (briefs and argument).

State v. Engel, No. 81072-9. Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute. The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top. The rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law. Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.” (briefs and argument).

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Tomorrow the Washington Supreme Court will issue a ruling in at least one case.

State v. Garvin, No. 80941-1 (case briefs and argument). Are police officers limited to pat downs, or can they “squeeze” a defendant’s pockets to determine the nature of objects in the pocket? An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”

Garvin argues that the officer is not allowed to manipulate objects within the clothing, and squeeze method exceeds the scope of a valid frisk under the "stop and frisk" rule articulated in Terry v. Ohio, 392 U.S. 1 (1968). He moved to suppress the evidence seized, and the trial court denied the motion. Garvin was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.

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In Powell the Court focused on whether the trial court's admission of evidence of drug use by the defendant, without parallel testimony explaining the effect of the drug, was an error requiring reversal. Writing for a plurality, Justice Mary Fairhurst determined that because the defendant's attorney failed to raise this issue at the trial court and because there was no "manifest constitutional error," the trial court's guilty verdict should be upheld.

Jason Powell was convicted of attempted burglary in the first degree for trying to break into his girlfriend's home while carrying a loaded gun. The prosecution called Powell's roommate to testify that he had seen Powell take methamphetamine right before he went to his girlfriend's house. Testimony about past crimes or bad acts are generally inadmissible to directly prove that a person was likely to commit the crime in question, as they are highly likely to prejudice a jury against the defendant. But they can be used to show things like a person's state of mind or intent. In this case, the State was attempting to show Powell's state of mind at the time he went to his girlfriend's house. The Court found that Powell's attorney objected to the credibility of the witness, but didn't preserve on the record a concern about its prejudicial effect.

The Court of Appeals reversed the conviction, saying the State should have provided expert testimony to explain the likely effects of meth, but the Supreme Court disagreed because the need for such a procedure was not raised at the trial court. As it was an "uncontested issue." Fairhurst wrote that the Court therefore could not review it unless they determined it constituted a manifest error of constitutional magnitude. It did not, as there was no evidence showing the roommate's testimony had practical and identifiable consequences on the outcome of the trial.

Justice Stephens wrote a concurring opinion in which she agreed that the error was harmless, but disagreed that the objection had not been preserved at trial court. Justices Alexander and Chambers signed her concurrence.

Justice Sanders dissented, joined by Justice Charles Johnson. He argued that the objection to the prejudicial nature of the testimony was preserved at the trial court, and that the testimony should not have been allowed because it was prejudicial, misleading, and of no value to the jury.

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State v. Sutherby, No. 80169-0 (case briefs and arguments). The Supreme Court threw out a child rape conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter ("L.K.") stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Randy Sutherby was arrested and charged with first degree rape of a child and first degree child molestation. A subsequent search of his personal computer found child pornography, and he was charged with “10 counts of possession of depictions of minors engaged in sexually explicit conduct.” He was convicted by a jury on all counts and appealed.

The Court here considers two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?” Justice Stephens, joined by five other justices, reversed the multiple charges of possession, and reversed the rape and molestation convictions and ordered a retrial.

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.” The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition. The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

Justices Fairhurst and Madsen agreed with the majority on the child pornography issue, but dissented on the severance issue. Justice James Johnson dissented on all issues, arguing that Sutherby received a fair trial and was properly convicted. Johnson opened and closed his opinion with, “Poor little L.K.”

UPDATE: The Seattle PI took note of Justice Johnson's emotional dissent here.

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Washington Supreme Court Justice Richard B. Sanders has an opinion piece in today's Seattle Times where he offers some words of advice to Attorney General Eric Holder. He urges Mr. Holder to respect the rule of law, and has some harsh words for the Bush Administration.

If the rule of law means anything, it must mean at least this: Those who act or are in positions of authority in our government are subject to the same laws as everyone else. This has been the American tradition, the crown jewel of a free society, a government of laws, not of men.

The Times editor notes that Justice Sanders made national headlines last year when he yelled "Tyrant!" at then-U.S. Attorney General Michael Mukasey during a dinner in Washington, D.C.

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