Opinions from the holidays

Posted on January 3, 2011 by Trent England

In re Pers. Restraint Petition of Gentry, No. 84039-3. Jonathan Lee Gentry was convicted of murder and sentenced to death in 1991. He challenges his conditions of confinement, essentially solitary confinement, as unconstitutional ex post facto punishment.

Per Department of Correction regulations at the time of his conviction, Gentry served his first 12 months in the Washington State Penitentiary's highly restrictive intensive management unit (IMU) and was then granted a housing placement review. Based on good behavior, he was transferred to the special housing unit (SHU). There he enjoyed many more privileges, including contact with other inmates, employment, and family visits. Due to state budget cuts, the SHU was shut down and Gentry was transferred back to the IMU in December 2008. He challenges that increase in the severity of his confinement as he awaits execution.

The Supreme Court dismisses his petition, holding that prisoners do not have a liberty interest in "good behavior" benefits.

[A] prisoner's participation in good behavior incentive programs, which confer benefits over which the DOC has discretion, can be discontinued by ex post facto changes to prison regulations for valid administrative reasons having nothing to do with an individual prisoner's conduct.

The Chief Justice wrote for the majority. Justice Stephens, joined by Justice Sanders, dissents and would remand to superior court for additional fact finding.

State v. Coucil, No. 83654-0. Nikeemia Coucil failed to appear after being charged with felony harassment and released on bail. Coucil was eventually arrested and convicted of a lesser included offense of misdemeanor harassment and also convicted of felony bail jumping. He challenges the latter conviction, arguing that the bail jumping charge should be a misdemeanor because the underlying conviction was for a misdemeanor rather than the originally charged felony. The court of appeals sustained Coucil's conviction, finding that the bail jumping statute (RCW 9A.76.170) unambiguously relates to the original charge rather than the final conviction. A unanimous Supreme Court agrees, with an opinion written by Justice Alexander. (briefs, argument)

State v. Marohl, No. 83570-5. Mixed martial arts fighter James Michael Marohl appeals his conviction for third degree assault, arguing that a casino floor is not an "instrument or thing likely to produce bodily harm" as required for a third degree assault conviction per RCW 9A.36.031(1)(d).

Joseph Rex Peterson, drunk inside the Little Creek Casino, knocked over a chair. Sean McFadden pointed out to Peterson that the chair had nearly hit McFadden's wife and asked Peterson to be more careful. Petersen put his arm around Sean McFadden and began to apologize, but would not release his hold on McFadden. And then along cam Marohl, a friend of the McFaddens. He separated the two men, put Peterson in a choke hold, and began maneuvering him toward the door. The two men went down, either because Peterson tripped or because Marohl intended to slam him to the floor. Peterson was briefly unconscious and suffered bruises and scrapes to his face. Marohl was charged with second degree assault or, in the alternative, with third degree assault. He was convicted of the latter, appealed, and the court of appeals sustained his conviction.

The Supreme Court unanimously reverses Marohl's conviction. The Court holds that the phrase "instrument or thing likely to produce bodily harm"

... does not include the casino floor within the meaning of instrument or thing because, under the circumstances of this case, it was not likely to produce harm and it was not used as a weapon.

The Court's opinion was authored by Justice Sanders. (briefs, argument)

State v. Wilson, No. 83797-0. When Jason Wilson was sentenced after pleading guilty to two charges of identity theft, his offender score was calculated based on seven prior felony convictions. After the sentencing, Wilson pointed out that one of the seven convictions was actually a gross misdemeanor attempt charge. He appealed his sentence, but prosecutor's argued--and the trial court agreed--that Wilson's only remedy was to withdraw his plea deal. The court of appeals upheld the sentence, but did so by adopting a novel, grammar-straining interpretation of the offender score statute (RCW 9.94A.525(4)) that would require the gross misdemeanor attempt conviction to be scored as a felony. The Supreme Court unanimously reverses the court of appeals and remands the case for resentencing. (briefs, argument)

Smith v. Orthopedics Int'l, Ltd., No. 83038-0. In the previous case of Loudon v. Mhyre, the Court held that "in a personal injury action, 'defense counsel may not engage in ex parte contacts with a plaintiff's physicians.'" In this case, defense counsel emailed documents to the attorney representing one of the plaintiff's non-party physicians, including the plaintiff's brief and the transcript of the physician's own deposition and that of plaintiff's expert witness, which the attorney passed on to the physician. The plaintiff learned of these facts during the physician's testimony and eventually asked for a new trial. The trial court refused and, after a decision for the defendants, plaintiff appealed. The court of appeals affirmed the trial court.

A splintered Supreme Court sustains the courts below, holding that while the contact did violate the prohibition established in Loudon, it was non-prejudicial. The lead opinion was written by Justice Alexander and joined by Justices Owens and James Johnson. Justice Fairhurst, with the Chief Justice, concurs in the result. They would not, however, find a Loudon violation at all because the contact was a one-way communication to the physician. Justice Charles Johnson, joined by Justices Sanders, Chambers, and Stephens, dissents and would find a Loudon violation and grant a new trial. (briefs, argument)

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Today's arguments - November 16, 2010

Posted on November 16, 2010 by Jonathan Bechtle

Today the Court will hear four arguments, as normal. (Docket, briefs)

Morning session (9:00 a.m.)

Bainbridge Island Police Guild v. Puyallup, No. 82374-0 (consolidated w/82803-2). Whether a person can claim a privacy exemption to disclosure of records under the Public Records Act after not disputing an earlier disclosure of the same records to a media outlet.

Bainbridge Island police officer Steven Cain was accused of sexual misconduct after stopping a suspected DUI. The Puyallup and Mercer Island police departments investigated, and the accusation was found to be unsubstantiated.

The Kitsap Sun requested and received documents related to the investigation from the City of Puyallup. Later, Kim Koenig (the alleged victim) and Lawrence Koss also requested the documents. Officer Cain sued successfully to prevent Puyallup from releasing them based on his right to privacy. On appeal, Koenig and Koss argue that releasing the documents would not violate Cain's privacy since the information has already been made public, and that Cain waived his privacy interest by not objecting when Puyallup gave the documents to the Sun.

In re the Personal Restraint of Joshua Dean Scott, No. 82951-9.  Whether a judge changing a sentence enhancement from a jury verdict of "armed with a deadly weapon" to "possessing a firearm" invalidates the sentence.

Joshua Scott was convicted of robbery and possession of stolen property. At trial, the jury was instructed on deadly weapon enhancements and returned special verdicts finding that Scott was armed with a deadly weapon (a rifle). In its ruling, the trial court indicated that the jury had found firearm enhancements (which increase the possible sentence) and sentenced accordingly. The court of appeals held that since the sentence misstated the jury's verdict, it was “facially invalid,” and sent it back to the trial court for resentencing.

The state argues that Scott was not entitled to relief (because Blakely v. Washington, a decision that requires enhancements to be submitted to the jury, had not been decided until after Scott's case), that the sentence was not facially invalid, and that the error was harmless.

Afternoon session (1:30 pm)

State v. Coucil, No. 83654-0. If a defendant jumps bail when he's charged with a felony, but that charge is later reduced to a misdemeanor, should he be charged with felony bail jumping?

Nikeemia Coucil was charged with felony harassment. When he failed to appear at his hearing, the state added a count of bail jumping. Coucil was eventually convicted of the lesser-included offense of misdemeanor harassment, and of felony bail jumping.

The classification of bail jumping is based on the classification of the offense the defendant was “held for, charged with, or convicted of” when he jumped bail. Coucil argued on appeal that since he was convicted of misdemeanor harassment, the bail jumping should have been a misdemeanor as well. The appellate court disagreed, holding that bail jumping is classified “according to the nature of the underlying charge at the time the defendant jumps bail.” So since the underlying charge was a felony when Coucil jumped bail, it was proper to treat the bail jumping as a felony.

Coucil argues on appeal that the statute is ambiguous about whether bail jumping is classified based on the underlying charge or conviction.

ZDI Gaming, Inc., v. Washington Gambling Commission, No. 83745-7. Are cash cards a cash equivalent for purposes of pull tab gambling machines? And is Thurston County the proper venue for all cases involving the state gambling commission?

Washington State bans most forms of gambling, including slot machines, but allows pull-tabs. ZDI makes a pull-tab dispenser designed to mimic the sounds and display of a slot machine. They designed an updated version of the dispenser using special cash cards; players can use the cards to purchase pull tabs, and any winnings under $20 are automatically credited to the cards.

State law requires pull-tabs to be purchased with cash, check, or bank transfer, and prizes must be “cash or merchandise.” When ZDI sought approval from the Gambling Commission to sell the updated dispensers, the Commission denied approval because the cash cards don't count as “cash” or a “cash equivalent.” The superior and appellate courts disagreed, holding that the cash cards are a cash equivalent.

In addition to the cash equivalent issue, the Commission argues that the appellate court should be reversed on procedural grounds, regarding which is the proper superior court to hear the case.

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New cases accepted for review

Posted on February 10, 2010 by Michael Reitz

The Supreme Court granted several petitions for review during its February 9 conference.

  • State v. Robinson, No. 83525-0
  • State v. Barber, No. 83640-0
  • State v. Coucil, No. 83654-0
  • Jackowski v. Hawkins Poe, Inc., No. 83660-4
  • Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6
  • State v. Millan, No. 83613-2
  • State v. Ford, No. 83617-5
  • City of Seattle v. May, No. 83677-9
  • State v. Martin, No. 83709-1
  • Blair v. TA-Seattle East #176, No. 83715-5
  • Hardee v. DSHS, No. 83728-7

State v. Robinson, No. 83525-0. Michael Robinson was convicted of residential burglary, theft of a firearm, first degree unlawful possession of a firearm, first degree theft, and unlawful possession of methamphetamine while armed with a firearm. He appealed, and the Court of Appeals (Div. 2) reversed his conviction for unlawful possession of methamphetamine while armed with a firearm conviction, while affirming the remaining convictions. The Supreme Court has agreed to review only the issue of whether police conducted a lawful search.

State v. Barber, No. 83640-0. Danny Barber pleaded guilty, pursuant to a plea agreement, to felony driving under the influence of intoxicants. The trial court sentenced him to 51 months of confinement, with no community custody. Subsequently, the Department of Corrections informed the court that a mandatory term of 9 to 18 months of community custody applied to Barber’s crime of felony DUI, but DOC recommended no community custody. The court stated it was not bound by a plea agreement and modified Barber’s judgment and sentence to add a term of 9 to 18 months of community custody. The Court of Appeals (Div. 2) held that the trial court had the authority to modify the sentence.

State v. Coucil, No. 83654-0. Nikeemia Coucil was arrested and charged with felony harassment after threatening to kill Paul Carlson. He failed to appear at a hearing on the charge. Eventually arrested and convicted of a lesser charge of misdemeanor harassment, Coucil was also convicted of bail jumping. Coucil argued that as he was convicted of a misdemeanor, his bail jumping conviction should have been sentenced as a misdemeanor. The Court of Appeals (Div. 1) disagreed, holding that for sentencing purposes bail jumping is classified according to the underlying charge at the time the defendant jumps bail—not according to the ultimate conviction.

Jackowski v. Hawkins Poe, Inc., No. 83660-4. Timothy and Eri Jackowski purchased a waterfront home in Mason County in 2004. Following landslide damages to the house, the Jackowskis sued the seller, the seller’s agent, and their own real estate agent, alleging fraud and misrepresentation. The trial court granted summary judgment in favor of the defendants. The Court of Appeal (Div. 2) affirmed in part and reversed in part, dismissing all claims against the seller’s real estate agency, reinstating the purchaser’s statutory and common law claims against their own agent, and reversomg dismissal of the breach of contract claims against the sellers as they were not properly before the trial court. The Supreme Court granted the petitions for review of both the sellers and the purchaser’s agent.

Whatcom County Fire Dist. No. 21 v. Whatcom County, No. 83611-6. Although a fire district asserted it was not equipped to serve more new structures, the county’s comprehensive development plan stated the fire district was able to provide adequate services based on its current taxing abilities. As a result, a hearing officer determined the fire district was precluded from asserting a lack of ability to do so on a project by project basis. The superior court reversed. The Court of Appeals (Div. I) ruled against the fire district and reinstated the permit approvals, holding that the evidence was substantial and sufficient to support the examiner’s finding that fire district had capacity to provide services to new developments.

State v. Millan, No. 83613-2. Defendant Francisco Millan was convicted of first degree unlawful possession of a firearm. Police had responded to a report that a man and woman were fighting in a car. The police arrested Millan and seized the firearm they found during the search of the vehicle incident to his arrest. On appeal, Millian argued that under Arizona v. Gant the search of his vehicle was unlawful. The Court of Appeals (Div. 2) held that Millan had waived his right to appeal the adminssion of evidence seized during the search by failing to file a motion to suppress. The Supreme Court is consolidating this case with State v. Robinson, No. 83525-0.

State v. Ford, No. 83617-5. Tyrone Ford was convicted of second and third degree child rape. The different degrees reflected that the victim was 13 years old during the first incident and 14 years old during the second incident. The Court of Appeals (Div. 2) reversed the first count but upheld the conviction for third degree child rape. The Court held that sending the jury back to the jury room to fill in a blank verdict form relating to second degree rape charge was manifest error affecting defendant’s right to fair trial; the trial court did not err by allowing state to amend alleged dates of charged incidents in information to conform to proof at trial; statements by two prospective jurors about their experiences with sexual abuse did not violate defendant’s right to impartial jury; and defense counsel did not perform deficiently in connection with prospective jurors’ discussions of those experiences.

City of Seattle v. May, No. 83677-9. Robert May was convicted for violation of a permanent domestic violence protection order. The Court of Appeals (Div. 1) held the order was facially valid.

State v. Martin, No. 83709-1. Timothy Martin was convicted of kidnapping and robbery charges. On appeal, Martin argued that the prosecutor’s questions concerning his opportunity to tailor his testimony to the evidence introduced at trial infringed his rights under article I, section 22 of the Washington Constitution to be present at trial, to meet witnesses face to face, and to testify in his behalf. The Court of Appeals (Div. 1) disagreed, noting that the federal constitution permits a jury to consider a defendant’s opportunity to tailor testimony, and that the questions were allowable under the Washington Constitution.

Blair v. TA-Seattle East #176, No. 83715-5. Maureen Blair, a commercial truck driver, was injured when she slipped and fell in a puddle of spilled gasoline at truck stop. She sued the truck stop operator. The trial court struck several of Blair’s witnesses, including her expert medical witnesses, as a sanction for Blair’s willful violations of the trial court’s discovery orders. The Court of Appeals (Div. 1) held that the trial court acted within its discretion. As causation could not be established without expert medical testimony, the trial court properly dismissed the case in the truck stop’s favor.

Hardee v. DSHS, No. 83728-7. The Department of Early Learning revoked Kathleen Hardee’s license to operate a home daycare after the Department learned that Hardee’s 19-year-old son was accused of molesting a child he was babysitting. (The child did not attend the daycare and the incident did not take place at the daycare.) In revoking Hardee’s license, the Department cited a number of other incidents involving her son. The Court of Appeals (Div. 1) affirmed the revocation.
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