Opinions: Cross Examinations and B&O Taxes

Posted on May 25, 2011 by Trent England

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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New cases accepted for review

Posted on May 3, 2010 by Michael Reitz

The Supreme Court granted several petitions for review last week.

  • Cary v. Mason County, No. 83937-9
  • In re Marriage of Farmer, No. 83960-3
  • State v. Hartzell & Tieskotter, No. 84017-2
  • State v. Kosewicz, No. 83682-5
  • State v. Perez-Valdez, No. 84003-2
  • Washington Imaging Services, LLC v. Wash. State Dept of Rev., No. 84101-2.
  • Harris v. Hon. Edsonya Charles, No. 83867-4.
  • Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., No. 83883-6
  • State v. Posey, No. 82957-8
  • State v. Mullen, No. 83981-6
  • Personal Restraint Petition of Chad Alan Pierce, No. 83731-7
  • Personal Restraint Petition of Eric Sheridan Flint, No. 83815-1 


Cary v. Mason County, No. 83937-9. A group of property owners seek a declaration that a special assessment adopted by the Mason County Conservation District is an invalid and unconstitutional property tax. The superior court ruled in favor of the property owners, and the Court of Appeals (Div. 2) reversed. (Note: The publisher of this blog filed an amicus curiae brief in support of the property owners’ petition for review.)

In re Marriage of Farmer, No. 83960-3. Daniel Farmer and Teresa Farmer entered into a dissolution agreement under which Teresa would receive one half of some community stock. After entering the agreement, but before the final dissolution decree, Daniel sold all of the stock options and fraudulently concealed the fact that he had done so until after entry of the decree. The trial court vacated the stock option provisions of the decree and awarded Teresa damages based an expert’s calculation of damages based on the value of the stock options. Daniel challenges the trial court’s determination of damages.

State v. Hartzell & Tieskotter, No. 84017-2. The Supreme Court granted review on the firearm enhancement issue and remanded the case to the Court of Appeals in light of State v. Williams-Walker (2010).

State v. Kosewicz, No. 83682-5. Theodore Kosewicz was convicted for aggravated first degree murder, first degree kidnapping, and conspiracy to commit first degree kidnapping. The Court of Appeals (Div. 3) reversed the conviction for first degree kidnapping but affirmed the other convictions. The Supreme Court agreed only to hear the review the aggravating factor issue.

State v. Perez-Valdez, No. 84003-2. Alberto Perez-Valdez was convicted of second and third degree rape of a child. He appealed, arguing the trial court made several evidentiary errors, including allowing an investigator to testify that the alleged child victims were telling the truth.

Washington Imaging Services, LLC v. Wash. State Dep’t of Rev., No. 84101-2. Washington Imaging Services (WIS) collects funds from its patients and insurance companies and forwards the funds to Overlake Imaging Associates for radiological analysis. WIS did not pay business and operating taxes on these funds, concluding that the funds qualified under a “pass through” exemption that allows a business to exclude amounts it receives as an agent for a client from its taxable gross income. After an audit the Department of Revenue concluded WIS owed B & O tax for payments forwarded to Overlake Imaging. The trial court ruled for the Department of Revenue, but the Court of Appeals (Div. 2) reversed the ruling, holding that the pass through payments were not gross income and WIS should not pay B&O taxes on these amounts.

Harris v. Hon. Edsonya Charles, No. 83867-4. Joshua Harris was sentenced to 90 days in jail after pleading guilty to driving while license suspended in the third degree. He filed a writ of habeas corpus in King County Superior Court asking that the municipal court be ordered to give him credit for his time on electronic home monitoring. The Superior Court granted the writ. The Court of Appeals (Div. 1) reversed.

Kitsap Alliance of Prop. Owners v. Cent. Puget Sound Growth Mgmt. Hearings Bd., No. 83883-6. The Supreme Court ordered the Court of Appeals to review the constitutionality of House Bill 1653, enacted by the Washington Legislature this year. The legislation was in response to a Court of Appeals ruling which relied on the Supreme Court’s interpretation of state land use law as it then stood. House Bill 1653 amended land use law and purported to apply retroactively. For more on the case, see the Pacific Legal Foundation’s press release.

State v. Posey, No. 82957-8.

State v. Mullen, No. 83981-6. Lisa Mullen and Kevin Dean were convicted of stealing from their employer, Frontier Ford. After their trial Mullen and Dean discovered information from a related lawsuit that could have been useful in corroborating their defense at trial. They sought a new trial but the trial court and the Court of Appeals (Div. 1) both held the defendants could have obtained the evidence on their own, and that the evidence too speculative to be material.

Personal Restraint Petition of Chad Alan Pierce, No. 83731-7.

Personal Restraint Petition of Eric Sheridan Flint, No. 83815-1.

 
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