Today's arguments - October 26, 2010

Posted on October 26, 2010 by Jonathan Bechtle

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

Morning session (9:30 a.m.)

Blair v. Travel Centers of America, No. 83715-5. Whether the trial court abused its discretion by not allowing medical witnesses to be called due to violation of a local procedural court rule.

Truck driver Maureen Blair slipped and fell on spilled oil at a gas station, and sued the station. The King County Local Court Rules require parties to disclose possible witnesses by certain deadlines before trial. Blair's counsel failed to submit a list on time. The court allowed a list to be submitted, but as a sanction only allowed 7 witnesses on the list (instead of 14).

Just before trial, Blair's counsel indicated an intent to call two medical witnesses who had not appeared on either possible witness list. The defense objected, and the court disallowed the new witnesses. The case was later dismissed for lack of necessary medical evidence. Blair argues that the trial court failed to make necessary findings and abused its discretion when it disallowed witnesses and dismissed the case. The Division One Court of Appeals disagreed with him.

State v. Wilson, No. 83797-0. Whether resentencing is appropriate if a court erroneously classifies a gross misdemeanor as a felony when calculating a criminal sentence.

Jason Wilson pleaded guilty to identity theft. The plea agreement incorrectly listed a prior conviction for an attempted drug crime as a felony instead of as a gross misdemeanor, and calculated Wilson's offender score accordingly. Wilson argues that he is entitled to resentencing because his offender score was miscalculated.

The Court of Appeals disagreed, since the law requires attempted felonies to be treated as felonies when calculating offender score. This means the gross misdemeanor would be counted as a point toward Wilson's offender score anyway, and the factual error would not invalidate the sentencing.

Afternoon session (1:30 p.m.)

State v. Robinson (consolidated w/State v. Millan), No. 83525-0. Whether the admissibility of evidence can be challenged on appeal based on a new constitutional interpretation, when that point was not raised at trial.

Michael Robinson and Francisco Millan were each convicted of crimes based on evidence obtained through warrantless searches of their cars. In both cases they were confined away from the car before the search took place.

While Millan's case was on appeal the U. S. Supreme Court decided Arizona v. Gant, holding that the search of a car incident to arrest is only valid if the defendant is still within reaching distance of the passenger compartment (or if there is reason to believe the search will uncover evidence). Millan challenged the search of his car based on Gant, but the Court of Appeals rejected his argument since he hadn't raised the issue at trial. Millan claims that he should be allowed to challenge the search on appeal because the law changed after the trial was over.

In re the Personal Restraint of Glenn Nichols, No. 83742-2. Whether an issue can be raised in a personal restraint petition that was not raised at the trial court, and whether a police search of a hotel registry was valid.

Glenn Nichols was convicted of drug crimes based on a police search of a motel registry. After he had appealed his conviction (but before the appeal had been denied) Nichols filed a personal restraint petition based on the claim that the registry search violated the state constitution. The Court of Appeals denied the petition, saying that since the issue had not been raised at trial and could not be raised for the first time on appeal, it also couldn't be raised for the first time in a personal restraint petition.

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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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