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State v. Ford, No. 83617-5. At the end of Tyrone Ford's trial on two counts of child rape, the jury returned with only one of the two verdict forms completed. The form for the second count indicated a guilty verdict, but the form for the first count was blank. The judge sent the jury back to the jury room with instructions to fill in the blank form, and within five minutes the jury returned with the form completed to indicate a guilty verdict for count one. Ford appealed, asserting that the judge's instruction was coercive, and a divided court of appeals threw out the conviction for count one.

Today, a splintered Supreme Court reverses the court of appeals and reinstates Ford's conviction. The lead opinion, written by Justice Charles Johnson and signed by Justices Alexander, Owens, and James Johnson, finds that Ford has not met the threshold requirement of "establish[ing] a reasonably substantial possibility that the verdict was improperly influenced by the trial court's intervention" (quoting State v. Watkins (1983)). Because Ford first raised this issue on appeal and because the record suggests that the jury had already completed deliberations and reached a unanimous verdict as to count one before the judge's instruction, Ford cannot meet the threshold test to raise the constitutional issue.

The Chief Justice, joined by Justice Fairhurst, concurred. They would not rely on the assumption that the jury had finished deliberating, but find the jury's quick return and confirmed unanimity convincing that there was no improper influence on the jury. Justice Stephens authored a dissent, which was also signed by Justice Chambers and Justice Pro Tem. Sanders. Justice Wiggins did not participate. (briefs, argument)

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State v. Hager, No. 83717-1. Before the trial of Timothy Hager on the charge of first degree rape of a child, the trial court issued an order at the request of defense counsel instructing the police officer witnesses not to give their opinions or draw conclusions about Hager. Nevertheless, one of the officers giving testimony characterized Hager as "evasive." The defense immediately objected and moved for a mistrial. The trial judge instructed the jury to disregard the testimony but did not grant the motion for a mistrial. Hager appealed and the court of appeals found that Hager's right against self incrimination had been violated and that the trial court erred in denying the motion for a mistrial.

Today, the State Supreme Court reverses the court of appeals and holds that Hager's right against self incrimination was not violated. Hager had not refused to answer the police officers' questions, but had rather given answers in an apparently evasive way. The officer's testimony rather infringed on the jury's role as the sole determiner of fact and thus violated Hager's right to a jury trial. However, the curative instruction, made orally following the officer's comment and reiterated in writing in the final jury instructions, were sufficient to cure the violation. Justice Alexander wrote for an eight-member majority. Justice Pro Tem. Richard Sanders wrote the lone dissent, contending that the majority's decision corrodes the important role of juries in our tripartite system of government by relying on them to follow the judge's curative instruction. (briefs, argument)

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State v. Russell, No. 84307-4. Arthur Russell was convicted of first degree rape of a child. The trial court admitted evidence of similar acts committed by Russell against the victim in other states for the limited purposes of corroboration and showing Russell's disposition toward the victim (as permitted by ER 404(b)). Russell's attorney did not request a limiting instruction from the trial judge and none was given. On appeal, Russell argued that the trial court was required to give a limiting instruction. The court of appeals accepted this argument and overturned the conviction.

The Supreme Court today unanimously reverses the court of appeals and affirms Russell's conviction. A trial court is not required to provide a limiting instruction sua sponte; ER 105 applies to evidence admitted under ER 404(b). Justice Fairhurst wrote for the Court. (briefs, argument)

Veit v. Burlington N. Santa Fe Corp., No. 83385-1. Alizon Veit was driving across railroad tracks in Bellingham when she was hit by a Burlington Northern Santa Fe freight train. She sued, alleging negligence. Veit claimed, among other things, that BNSF was negligent because the train was traveling faster than an internal speed limit of 30 miles per hour on the particular tracks. The trial court found this claim preempted by a federal speed limit of 40 miles per hour and granted partial summary judgment to BNSF. At trial, a jury found that BNSF was not liable.

Veit appealed the partial summary judgment and the trial court's refusal to allow evidence of her exercise of due care at the crossing. The court of appeals affirmed the trial court. The Supreme Court today unanimously upholds the decisions below. The opinion, by the Chief Justice, reiterates that the federal speed regulation preempts claims based on company speed limits and that because "Washington is a pure comparative negligence jurisdiction" and the jury was properly instructed, evidence of her lack of contributory negligence was irrelevant. (briefs, argument)

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In re Custody of E.A.T.W. and E.Y.W., No. 81945-9. Was the superior court right to grant a hearing for a custody petition based only on the fact that the children had lived with the petitioning grandparents for several years? The Court of Appeals had overturned the superior court, and the Supreme Court today upholds the Court of Appeals. The High Court holds that RCW 26.10.032 imposes on third party petitioners the duty of setting forth facts that would show “that the parent is unfit or placement with the parent would result in actual detriment to the child's growth and development.”

The unanimous opinion, written by Justice James Johnson, goes on to hold that this standard is in accord with the U.S. Supreme Court’s decision in Troxel v. Granville.

In Troxel, the United States Supreme Court affirmed this court's judgment in In re Custody of Smith that constitutionally protected parental rights were violated by a statute allowing a nonparent to wrest custody of a child from a parent based solely on the court's findings regarding the child's best interests. Something more is required than the court's judgment that it could make a better decision than parents concerning the upbringing of children.

(Briefs, Argument-May 28, 2009)

State v. Sibert, No. 79509-6. Richard Sibert was convicted by a jury in 2004 of four crimes related to the sale of methamphetamine. The Court of Appeals affirmed the lower court, and Sibert appeals on three alleged errs:  1) failure of the trial court to include the identity of the “controlled substance” on part of the jury instructions; 2) failure to prove the identity of the controlled substance; 3) an inappropriate jury instruction on “knowledge.”

Today the Court upholds Sibert’s conviction and sentencing. It finds that throughout the trial, everyone involved understood that the controlled substance was methamphetamine. Further, the jury instructions incorporated by reference the charging documents that identified the substance as methamphetamine. It also upholds the instruction on “knowledge,” which the trial court took directly from the Washington Practice.

Justice James Johnson also wrote this majority opinion, but Justices Sanders and Alexander both authored dissents, the latter joined by Justices Charles Johnson and Debra Stephens. The Chief concurred with the majority, but as to the result only. The four dissenting justices would hold prosecutors to a higher standard, in this case requiring a more explicit and precise description of the controlled substance.

(Briefs, Argument-February 10, 2009)

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