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State v. Bunker, No. 81921-1. Three defendants, each convicted of violating a no-contact order, appeal those convictions. Looking to a "shall arrest" clause in the statute," defendants argue that the law (former RCW 26.50.110) "criminalizes only those contacts with a protected party that are violent, threaten violence, or occur in a specifically prohibited place."

The Court, in an opinion by Justice James Johnson and joined by seven other justices, holds that the plain language of the statute and the clear intent of the legislature is to criminalize all violations of a no-contact order. Justice Sanders dissents. (briefs, argument)

State v. Kintz, No. 81688-3. Clarence Kintz was convicted of two charges of misdemeanor stalking and appealed, challenging the trial court's interpretation of the statutory phrase "separate occasions" and the sufficiency of the evidence. In two incidents, one in December 2005 and the other in January 2006, Kintz frightened women by repeatedly and slowly driving past them and, in the latter case, offering the woman a ride and money. Both women called 911 and Kintz, who admitted some of the details of each incident, was eventually charged.

Kintz argues that "separate occasions" is ambiguous and that the Court should apply the rule of lenity to find that separate occasions must happen over a greater length of time than in these incidents. The Court of Appeals upheld the convictions and the Supreme Court sustains that decision, agreeing with the lower court that the plain meaning of "separate occasions" is "a distinct, individual, noncontinuous occurrence or incident." The Court also finds sufficient evidence to support the convictions. Justice Alexander authored the opinion for a majority of seven.

Justice Sanders dissents and would hold that the events leading to each of these stalking charges should be considered a single occasion, rather than "separate occasions," and thus do not meet the statutory definition of stalking. For related reasons, he would also find insufficient evidence to sustain the convictions. Justice Chambers dissents separately in order to agree with Justice Sanders only as to the ambiguity in the term "separate occasions." (briefs, argument)

State v. Meneses, No. 83172-6. Andre Toi Meneses fathered a child by his then-girlfriend Jamila Willis. After they broke up, the child remained with Willis. Meneses began repeatedly calling Willis and leaving voice mail messages for her using "incredibly vile language, including racial slurs and descriptive obscenities," and threatening to kill Willis, her new boyfriend, and the new couple's infant. Willis eventually called the police, who recorded ten messages left by Meneses that became the basis for ten charges against him: four counts of felony telephone harassment, four counts of gross misdemeanor telephone harassment, and two counts of intimidating a witness. He was convicted by a jury on all counts.

The Court of Appeals sustained the convictions. The Supreme Court considered three issues raised by Meneses. First, the jury instruction on telephone harassment did not fail to specify that the criminal intent must have been formed before the call was placed. The instruction used the statutory language, and the Court has previously held that the meaning of the statute is clear on its face. Second, it did not violate double jeopardy for a count of telephone harassment and a count of intimidating a witness to arise from the same message because "each [conviction] required proof of a fact the other did not." Finally, because [n]o affirmative evidence supported the idea that Meneses committed witness tampering but not intimidating a witness," the trial court was not obligated to instruct the jury on the lesser included offense.

The Court, with an opinion by Justice Stephens, unanimously upholds the courts below. (briefs, argument)

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State v. Adams, No. 82210-7. A King County Sheriff's Deputy stopped a vehicle because the registered owner had an arrest warrant for driving with a revoked license. Coryell Adams, the registered owner, was the driver and sole occupant in the car. When stopped, he got out of the car, locked it, and walked several steps away, all in violation of the officers orders to get back into the vehicle. After Adams was arrested, officers searched the car and found cocaine. Adams moved to suppress that evidence; the trial court denied the motion and was affirmed on appeal.

While awaiting review, the U.S. Supreme Court decided Gant, which limits searches incident to arrest. The State filed a supplemental brief conceding that Gant applies here, but arguing for the court to apply the "good faith" exception.

Today, in a unanimous opinion by the Chief Justice, the Court declines to apply the good faith exception. The Court puts itself in its place, reasoning that while reliance on statutes that are subsequently struck down may warrant a good faith exception, reliance on the Court's erstwhile case law does not. (briefs, argument)

State v. Turner, No. 81626-3 (consolidated with State v. Faagata, No. 82336-7). In these cases, each defendant was convicted of two charges stemming from a single event. The trial courts set aside the lesser conviction to avoid violating double jeopardy, but issued an order that if the remaining conviction was overturned on appeal, the lesser conviction could be reinstated. The trial courts were affirmed by the Court of Appeals.

In a unanimous opinion by Justice James Johnson, the Court first reviews federal case law, which holds that double jeopardy does allow trial and conviction on lesser included offenses and "does not require permanent, unconditional vacation of the lesser of two convictions for the same criminal conduct...." However, the Court today reverses the Court of Appeals, and holds that the trial courts conditional vacation of the lesser offenses violated double jeopardy.

... a trial court must avoid (i) entering judgment on a defendant's lesser conviction and (ii) referencing that conviction when sentencing a defendant convicted of multiple crimes for the same criminal conduct. This is precisely what Turner and Faagata demanded, but did not receive, at trial and on appeal -- vacation of their lesser convictions without reference to any validity attributable to those convictions.

The Court notes that convictions for lesser included offenses that have been vacated can later be revived.

However, the lesser conviction, once vacated, and prior to reinstatement, is not "a valid conviction" and is not "entitled to some weight," contrary to the trial courts' rulings in these cases. ... In the future, the better practice will be for trial courts to refrain from any reference to the possible reinstatement of a vacated lesser conviction.

(briefs, argument)

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State v. Harrington, No. 81719-7. With a unanimous opinion by Justice Richard Sanders, the Court today reverses the Court of Appeals, suppresses the evidence of methamphetamine used to convict Dustin Harrington, and dismiss the case.

Harrington was walking down a street around 11 p.m. when Richland Police Officer Scott Reiber stopped to talk with him. Reiber did not activate his lights or siren and did not block Harrington's path. During the contact, Reiber told Harrington to keep his hands out of his pockets and a State Patrol officer also stopped and stood nearby. Eventually Reiber asked to frisk Harrington and discovered a meth pipe and a baggy containing the drug.

The Court holds that Harrington was subjected to a "progressive intrusion" that eventually violated his state constitutional rights.

Requesting to frisk is inconsistent with a mere social contact. If Reiber felt jittery about the bulges in Harrington's pockets, he should have terminated the encounter--which Reiber initiated--and walked back to his patrol car. Instead Reiber requested a frisk.

When Reiber requested a frisk, the officers' series of actions matured into a progressive intrusion substantial enough to seize Harrington. A reasonable person would not have felt free to leave due to the officers' display of authority.

We note this progressive intrusion, culminating in seizure, runs afoul of the language, purpose, and protections of article I, section 7. Our constitution protects against disturbance of private affairs -- a broad concept that encapsulates searches and seizures. Article I, section 7 demands a different approach than does the Fourth Amendment; we look for the forest amongst the trees. ...

Because Harrington's consent to the search was obtained through exploitation of a prior illegal seizure, suppression of the evidence is required.

(briefs, argument)

State v. League, No. 82991-8. Tony League was convicted of robbery and unlawful imprisonment. The Court of Appeals found the two crimes merged but failed to vacate the lesser conviction and only remanded the case for resentencing. In a per curiam opinion, the Court grants League's petition for review, reverses in part the Court of Appeals, and remands to the trial court to vacate the unlawful imprisonment conviction and resentence League for his remaining conviction.

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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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In re Pers. Restraint of Brooks, No. 80704-3. Jeffrey Brooks, convicted of three counts of first-degree robbery and one count of residential burglary, was sentenced to 120 months in prison plus 18 to 36 months of community custody. He challenges the sentence as exceeding the maximum, which is 120 months for both imprisonment and community custody. In a unanimous opinion by Justice Chambers, the Court upholds the courts below and finds Brooks's sentence lawful. The Court reasons that Brooks will likely earn early release credits that reduce his sentence below the maximum and, if he does not, the sentence was already amended to note that Brooks total time in confinement and supervision may not exceed 120 months. "We hold that when a defendant is sentenced to a term of confinement and community custody that has the potential to exceed the statutory maximum for the crime, the apropriate remedy is to remand to the trial court to amend the sentence and explicitly state that the combination of confinement and community custody shall not exceed the statutory maximum." (briefs and argument)

State v. Hughes, No. 81270-5. Raymond Hughes admitted to sexual intercourse with a 12-year-old girl with cerebral palsy whom he had been hired to nurse. He was charged with both second-degree rape and second-degree rape of a child. Hughes challenges that the two charges amounted to double jeopardy and that his exceptional sentence of 102 months to life is an indeterminate exceptional minimum sentence that exceeds the trial court's authority. Here, in a unanimous opinion by Justice Charles Johnson, the Court holds that the two charges do amount to double jeopardy because they are based on the same single incident and the elements of each crime are essentially identical. The Court rejects Hughes's challenge to his sentence because he was convicted before the Sentencing Reform Act amendments that are essential to his argument. The case is remanded to the trial court to vacate one of the two convictions. (briefs and argument)

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The Court today issued opinions in two criminal cases and will hear argument in two cases.

Opinions

State v. Kirwin, No. 80113-4. Police arrested Dennis Kirwin for littering (he tossed a beer can out his truck window), then searched Kirwin's truck and found meth. State law makes littering only a civil infraction, which cannot result in an arrest, but Olympia deems it a misdemeanor. Kirwin challenged the city littering ordinance, arguing that it was unconstitutionally in conflict with the state statute. In a majority opinion by Justice Fairhurst and signed by Justices Alexander, C. Johnson, Chambers, Owens, and J. Johnson, the court upholds the ordinance and hence the arrest and the search. In a concurrence, Justice Madsen suggests that the ordinance may well be invalid under Article I, section 12, of the Washington State Constitution, but would not reach the question because it was not raised by Kirwin. Justice Sanders dissents, agreeing in part with Justice Madsen and disagreeing that the search was a lawful search incident to arrest. (Case briefs and argument.)

State v. Wright, No. 78465-5, & State v. Bryant, No. 78788-3 (consolidated). Justice Madsen writes for a six-member majority and holds that retrying defendants Wright and Bryant for murder is not barred by double jeopardy. "Because the defendants' convictions were reversed on grounds other than insufficient evidence, and because they have not been expressly or impliedly acquitted of intentional murder, they remain in the same jeopardy as attached at the first trial." Justice Sanders dissents, joined by Alexander and Chambers, arguing for a stronger interpretation of the double jeopardy clause. (Case briefs and arguments.)

Oral Arguments (briefs)

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