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State v. Martin, No. 83709-1. Timothy Martin appeals his convictions for kidnapping and robbery. During his trial, a prosecutor's questions implied that Martin, who had previously read the evidence against him, had tailored his testimony to be consistent with that evidence. Martin appealed, alleging a violation of his rights under article I, section 22, of the Washington State Constitution. The Court of Appeals held article I, section 22, to be coextensive with the Sixth Amendment as it applies here according to Gunwall and, based on the U.S. Supreme Court's decision in Portundo v. Agard (2000), affirmed the trial court.

The Washington Supreme Court disagrees with the Court of Appeals Gunwall analysis and thus with their reliance on Portundo. However, the Court agrees with the result reached by the Court of Appeals. When a defendant chooses to testify, prosecutors are free to challenge the defendant's credibility as with any other witness. Even Justice Ginsberg's dissent in Portundo indicated that she would allow such questions during cross examination (in Portundo, the suggestion that the defendant had tailored his testimony was made during the prosecution's closing argument).

The Court affirms the result reached by the Court of Appeals and embraces Justice Ginsberg's position in Portundo. Justice Alexander wrote for the Court, and the opinion was signed by four other Justices. Justice Stephens, with Justices Chambers and Fairhurst, concurs in the result, but only because she would find the prosecutor's questions here to have been harmless error. Justice Pro Tem. Sanders dissents and would put this area of the defendant's credibility beyond the reach of cross examination. (briefs, argument)

Washington Imaging Servs., LLC v. Dep't of Revenue, No. 84101-2. Washington Imaging is a medical imaging company that contracts with Overlake Imaging Associates, whose doctors interpret the images. Washington Imaging challenges a Department of Revenue decision that Washington Imaging owes Business and Occupation taxes on the money it receives from patients and then pays to Overlake Imaging Associates. The trial court granted summary judgment to the Department. It found that Washington Imaging was not acting as the agent of its patients in paying Overlake Imaging Associates, thus the payments in question were revenue subject to B&O tax. The Court of Appeals reversed that decision. The Supreme Court reinstates the trial court's grant of summary judgment. The Chief Justice wrote for a unanimous Court. (briefs, argument)

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In re Detention of Post, No. 83023-1. Charles Post was convicted in 1987 for first degree burglary and rape. Before his scheduled release from prison in 2003, King County petitioned for Post's civil commitment as a sexually violent predator (SVP). The first commitment trial led to a hung jury; after the second trial, the jury found that Post was an SVP. At the second trial, but not the first, prosecutors had introduced evidence about the treatment that would be available to Post if he was committed. Post objected, but the trial court denied his motions. The trial court also refused to allow Post to introduce evidence that, if he was released, he could be subject to a later SVP commitment petition for a "recent overt act."

Post appealed these determinations of the trial court and a divided Court of Appeals reversed his commitment and remanded for a new trial. Today, the Supreme Court in an opinion by Justice Owens agrees with the Court of Appeals and with Post. Evidence of possible future treatment was irrelevant and was not harmless error. Furthermore, evidence that Post could later be subject to an SVP commitment petition was relevant and should have been admitted. Six other justices signed the majority opinion.

Justice Stephens concurs with the outcome but offers a more limited rationale. The Chief Justice concurs in part and dissents in part. She would exclude the state's treatment program evidence, but would also exclude Post's evidence of the possibility of a later petition. (briefs, argument)

Tracfone Wireless, Inc. v. Dep't of Revenue, No. 82741-9. Tracfone, which sells prepaid wireless phone service, sued the Department for a refund of the enhanced 911 excise tax. A bare majority of the Court today upholds the trial court's grant of summary judgment for the Department, holding that RCW 82.14B.030 applies to prepaid wireless phone service as it does to any other wireless phone service.

In effect, TracFone is seeking a decision that whether the tax is owed depends upon how a company decides to market and charge for its service or, to put it another way, whether the tax must be paid depends entirely upon the individual company's business model.

The Chief Justice writes for the majority. Justice Chambers, joined by three other justices, dissents. He argues that tax statutes must be narrowly construed and, where there is ambiguity, construed in favor of taxpayers. Looking beyond the statutory description of the tax to the statutory language that governs how the tax is collected, the dissent finds that the legislature did not anticipate the tax applying to pre-paid wireless services. (briefs, argument)

Summaries of today's three unanimous decisions will be posted soon.

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State v. Ish, No. 83308-7. Nathaniel Ish beat his girlfriend to death and was convicted of second degree felony murder. He challenged his conviction on multiple grounds; it was upheld by the Court of Appeals. The Supreme Court accepted review only to consider whether the prosecution's reference to a witnesses agreement to testify truthfully constituted improper "prosecutorial vouching."

Improper vouching generally occurs (1) if the prosecutor expresses his or her personal belief as to the veracity of the witness or (2) if the prosecutor indicates that evidence not presented at trial supports the witness's testimony. United States v. Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007)

The Court today issues a lead opinion for four justices, a concurring opinion for another four justices, and a dissent by Justice Sanders. The lead opinion, by Justice Chambers, holds that the trial court did abuse its discretion by allowing the prosecution to reference the witness agreement before the witness's credibility was challenged by the defense; the error, however, was harmless. Justice Stephens wrote the concurrence, finding no error. Justice Sanders agrees with the lead opinion that the trial court did err, but disagrees that the err was harmless and would have reversed the lower courts. (briefs, argument)

State v. Moeurn, No. 82995-1. Lauren Moeurn challenged his sentence for second degree assault with a deadly weapon enhancement, arguing that the trial court miscalculated his offender score. The trial court had treated an "attempt" offense as a completed offense, thus changing a class-C felony to a class-B felony and doubling the number of years (from 5 to 10) for it to "wash out" for the purposes of calculating Moeurn's offender score.

The state actually conceded the issue at the Court of Appeals, but the Court rejected the concession and upheld Moeurn's sentence. The Supreme Court today unanimously reverses the courts below, quoting at length from RCW 9.94A.525 to show that the rule for which offenses to include and the rule for how to score included offenses are different. While the latter requires treating attempt offenses as if completed, the former does not. Justice Alexander wrote for the Court; the case is remanded for resentencing.

State v. Stubbs, No. 81650-6. Troy Stubbs stabbed Ryan Goodwin in the neck, severing his spinal cord and paralyzing most of Goodwin's body. Stubbs was convicted and given an exceptional sentence due to his victim's injuries. Stubbs challenges the sentence, arguing that no injury short of death can exceed "great bodily harm" in RCW 9.94A.535(c)(y). Eight members of the Court today agree with Stubbs. The majority opinion is written by Justice Alexander, and the case is remanded for resentencing. Justice James Johnson dissents. (briefs, argument)

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Update: links to briefs and argument videos are now included.

Guillen v. Contreras, No. 82531-9. Jesus Jaime Torres was killed in a mysterious shootout in Sunyside, Washington, in 2005. From the bloody scene, police seized $57,990 "packaged to resemble a kilogram of cocaine" and Torres's car. They seized another $9,342 that was in Torres's possession when he was shot. Torres's infant son, through his mother, challenged the property seizures. The superior court overturned the seizures of the car and the $9,342. The family moved for attorney fees. The superior court, relying on "substantially prevailing party" analysis, declined to award fees. A divided Court of Appeals affirmed.

The Supreme Court today considers only "the meaning of the attorney fee provision of the forfeiture statute." The Court adopts the reasoning from the dissenting opinion by Chief Judge John Schultheis of the Court of Appeals and quotes from his opinion.

"[T]his forfeiture statute recognizes the success of only one party -- the claimant. What the seizing agency retains is not relevant. It will never be a substantially prevailing party or prevailing party under RCW 69.50.505(6)." Thus, he suggests, quantitative comparison is inappropriate as we are not balancing the comparative success of two parties with an equal statutory interest in attorney fees. We agree. This is an attorney fee provision designed to protect individuals against having their property wrongfully taken by the State. A bare mathematical approach is not appropriate. (citation removed; hyperlink inserted)

The case is remanded to the trial court to determine "the amount of attorney fees reasonably incurred by the respondents" for their successful claims. Justice Chambers wrote for the Court and was joined by seven other justices. Justice Sanders dissents because he believes the statute requires a recovery of all attorney fees rather than only those related to the successful claims. (briefs, argument)

Holden v. Farmers Ins. Co. of Wash., No. 81487-2.  A fire in Laura Holden's rented home damaged and destroyed some of her possessions. Her rental insurance carrier, Farmers Insurance, sent her a check for the "cost of repair and replacement," but did not include Washington state sales tax in its calculations. Holden eventually brought this suit, "seeking a declaration that sales tax should be accounted for in the [actual cash value] calculation...." The Court today holds for Holden, finding the term "fair market value" as used in the insurance policy to be ambiguous. The Court thus interprets the term in favor of the insured. Justice Stephens writes for the majority, joined by five other justices. Justice James Johnson dissents, contending that "fair market value" is not ambiguous and does not include "a (theoretical) sales tax...." His opinion is joined by Justices Alexander and Owens. (briefs, argument)

In re Det. of Hawkins, No. 82907-1. As part of proceedings to determine whether Jake Hawkins is a sexually violent predator according to RCW 71.09, the trial court ordered Hawkins to submit to a polygraph examination. Hawkins refused and appealed; the Court of Appeals affirmed the trial court. The Supreme Court accepted review to determine whether RCW 71.09.040(4) allows such an order.

The Supreme Court today reverses the lower courts, holding that the order requiring a polygraph examination was not permitted by the statute.

Because the legislature is undoubtedly aware of the inherent problems with polygraph examinations, it is fair to infer that the legislature intends to prohibit compulsory polygraph examinations unless it expressly allows for their use. ...

We are satisfied that professional evaluators will be able to reach conclusions without the use of such evidence.

Justice Owens writes for the six-member majority. Justice Stephens, joined by the Chief Justice and Justice Fairhurst, disagree with the majority's interpretation of legislative intent and dissent. (briefs, argument)

In re Disciplinary Proceeding Against Scannell, No. 200,744-9. The Washington State Bar Association (WSBA) initiated an investigation of attorney John Scannell for conflicts of interest and assisting a suspended attorney to practice law. Scannell repeatedly and frivolously delayed the investigation, drawing it out from 2005 until today. The WSBA hearing officer found that Scannell had "negligently violated the conflict of interest rules--meriting minor sanctions--but that he had knowingly violated the rules requiring cooperation with disciplinary proceedings--meriting suspension." The disciplinary rule modified those findings, determining that Scannell's actions during the investigation were intentional and thus increasing the presumptive sanction to disbarment. The Board voted to disbar Scannell.

The Supreme Court today, in an opinion by Justice Stephens, exhaustively reviews the facts of the investigation and upholds the decision of the board. Three justices dissent, arguing in an opinion by Justice Alexander that the hearing officer's recommendation of suspension was the appropriate sanction. (briefs, argument)

In re Disciplinary Proceeding Against Shepard, No. 200,720-1.  Tacoma attorney Richard Shepard was found to have violated several Rules of Professional Conduct when he assisted a "living trust mill" that targeted seniors with unnecessary or improper financial products. The hearing officer recomended a six-month suspension, but the disciplinary board increased the recommendation to a two-year suspension. The Court today agrees with the board and suspends Shepard for two years. Justice Chambers writes for an almost-unanimous court. Justice Sanders dissents and would suspend Shepard for six months. (briefs, argument)

State v. Ervin, No. 83244-7.  James Ervin was convicted in 2006 of felony violation of a protective order. This appeal considers whether two earlier felony convictions should count toward Ervin's offender score at his sentencing. According to RCW 9.94A.525(2)(c), the two earlier felony convictions "washed out" if Ervin had subsequently been at least "five consecutive years in the community without committing any crime that subsequently results in a conviction." During a five year period, Ervin had not been convicted of any crimes but did spend 17 days in jail for violating probation. The State argued that the 17 days in jail restarted the five-year window. Ervin disagreed, arguing that only a conviction would reset the five years. While the Court finds the RCW somewhat ambiguous, it finds Ervin's reading more convincing. The lower courts are reversed and the case is remanded for resentencing with the lower offender score. The decision was unanimous, and Justice Owens wrote the opinion. (briefs, argument)

State v. Sanchez Valencia, No. 82731-1. Isidro Sanchez Valencia and Eduardo Chavez Sanchez were convicted of drug charges. Their sentences included community custody on the condition that they not use "items that could be used to ingest or process controlled substances, or to facilitate the sale or transfer of controlled substances." They appeal that provision as unconstitutionally vague, and the Court today unanimously agrees with the defendants. Justice Stephens wrote the Court's opinion. Justice James Johnson signed that opinion and added a concurrence pointing out that a simple change in language would allow a similar condition to stand. (briefs, argument)

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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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G-P Gypsum Corp. v. Dep't of Revenue, No. 81995-5. The City of Tacoma imposes a tax on the use of natural gas. Gypsum operates a manufacturing plant in the City. Gypsum purchases natural gas outside the City and transports it to the plant. Gypsum claims that according to the statute, "use" occurs where the gas is delivered, which is outside Tacoma's taxing jurisdiction. The Court of Appeals agreed with Gypsum.

Today, the Supreme Court overturns the lower court and holds that Gypsum does "use" the natural gas within Tacoma. The majority opinion finds that "the local BNG [brokered natural gas] tax holds a special position within the universe of Washington's use tax provisions." Rather than the usual statutory definition of "use," the Court applies the more ordinary definition to find that Tacoma can tax Gypsum's consumption of natural gas.

Justice Stephens wrote the majority opinion and was joined by Chief Justice Madsen and Justices Owens, Chambers, and Fairhurst. Justice Sanders dissents, joined by Justices Alexander, Charles Johnson, and James Johnson, arguing that the statutory definition is "plain on its face." (briefs, argument)

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In re Pers. Restraint of Rainey, No. 81244-6. After convictions for first degree kidnapping and telephone harassment, Shawn Rainey's sentence included an order prohibiting him from any contact with his ex-wife and daughter for life. He appealed that order, challenging that it violates his rights under Apprendi v. New Jersey and Blakely v. Washington and his fundamental rights as a parent.

Justice Stephens writes for a unanimous Court, holding that RCW 9.94A.505(8) allows a sentence to include a no-contact order up to the statutory maximum "when the jury verdict reflects facts warranting the prohibition." Here, the judge found no facts beyond the jury verdict and so there is no violation of Apprendi or Blakely.

The right to parent, however, is a fundamental right. A sentence that infringes such a right must be "reasonably necessary to accomplish the essential needs of the State and public order." The Court finds the state interest here compelling, but notes that "the interplay of sentencing conditions to fundamental rights is delicate and fact-specific, not lending itself to broad statements and bright line rules." The Court expresses dissatisfaction with the sentencing court's failure to provide a rationale for the extreme duration of the no-contact order and on that basis strikes the order and remands for resentencing.

(Briefs, argument)

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