WA Court of Appeals – Div. II: Spoliation and Secretly Recording ARE Misconduct for Unemployment Denial

March 17, 2010 by Justin Walsh

Smith v. State Of Wash. Empl. Sec. Dep’t

Smith secretly recorded conversations with his coworkers in violation of state law. In addition, he had a county laptop with unauthorized software and was instructed to return it without deleting anything. He returned it after removing the incriminating software of course. Those amount to misconduct worthy of denying Smith’s unemployment benefits. Of particular note is the Court of Appeal’s refusing to look at witness credibility over the view of the Commissioner. The Commissioner was actually reviewing the ALJ. Its unclear from the opinion if the Commissioner made credibility findings over the ALJ; all the court says is it will not put its findings of credibility over the agency. This seems a bit off.

Unfortunately, the policy was clear that recording was not allowed, and not complying with a policy is misconduct.

Posted in Division II, Employment, Judge Chris Quinn-Brintall-Draft Majority | Leave a Comment »

WA Court of Appeals – Div. II: Kitchen Sink Approach STILL Doesn’t Work

March 17, 2010 by Justin Walsh

State v. Hylton

Robin Douglas Hylton appeals his conviction for third degree child rape, arguing the trial court erred in (1) denying his jury waiver, (2) denying his right to present a defense by excluding certain evidence, (3) retroactively applying the statutory “abuse of trust” aggravating factor as the basis for an exceptional sentence, and (4) imposing an exceptional sentence following his second trial where the State had not alleged the aggravating factor in his first trial and offered no new factual basis, raising a presumption of vindictiveness. Hylton also argues that the jury instruction on “abuse of trust” was unconstitutionally vague, and that the prosecutor committed prosecutorial misconduct by improperly vouching for witnesses. Finding no reversible error, we affirm.

I won’t address bullet 4, as it’s pretty clear from the last opinion how the court feels about it.

Retro Application of Abuse of Trust Statute: Abuse of trust is an aggravating factor, not a crime. Regardless, this one was at common law before it was ever codified. The codified version is actually narrower. Further, this is really a procedural matter. Anyhow, it’s an interesting read, a bit long-winded for my taste.

The rest is unpublished!  Woohoo! Reprieve! 

Posted in Criminal Law, Judge David H. Armstrong - Draft Majority | Leave a Comment »

WA Court of Appeals – Div. II: Kitchen sink approach to criminal appeal doesn’t work

March 17, 2010 by Justin Walsh

State v. Elmore

Elmore appeals, arguing (the list is long, so I’m just going to do a quote):

[A]n officer’s improper opinion testimony that she was evasive and untruthful in giving  a statement violated her right to a jury trial, (2) her conviction of burglary, the predicate crime for felony murder, merged with her conviction of felony murder, and (3) the restraint that formed the basis for her kidnapping conviction was incidental to other crimes and, thus, insufficient to support a separate kidnapping conviction.  She also contends (4) the post-Blakely1 legislative amendments to the Sentencing Reform Act (SRA), chapter  9.94A RCW, do not apply to her pre-Blakely crimes, (5) the prosecution acted vindictively in amending the information after her two  successful  appeals, (6) the addition of aggravating factors to the amended information after her two previous appeals violated double jeopardy and the mandatory joinder rule, and (7) the sentencing court’s findings of aggravating factors violated her right to a jury trial on the findings.

Of course this is affirmed, otherwise I wouldn’t be giving a slightly dismissive attitude. Elmore had a previous appeal, but did not address these issues. The State of course argues that this precludes the appeal. The court decided on the merits, otherwise I wouldn’t be titling this the kitchen sink approach. Here we go:

1) This wasn’t raised at trial. Since it doesn’t go to an ultimate fact, it’s out. The court, in dicta, said that there was no harm because the officer also corroborated some of her story and the jury was instructed that THEY were the sole judges of credibility.

2) This wasn’t raised either, but merger is manifest. However, the burglary statute has a specific anti-merger clause.

3) Generally this is analyzed under sufficiency of the evidence. Elmore was convicted of conspiracy to commit burglary in this home invasion robbery. The people who actually committed the robbery may have an argument that the kidnapping is incidental resstraing to any armed robbery (see Korum, 120 Wn. App. 686), but not the case for the burglary.

4) Blakely has to be put through to a jury. You don’t get a free pass on aggravators.

5) Increasing charges after withdrawing a guilty plea, without more, doesn’t amount to prosecutorial vindictiveness.

6) This one gets a quick block quote to explain the double jeopardy:

Nor does double jeopardy restrict the length of a sentence imposed on retrial after a defendant’s successful appeal. State v. Jones, 102 Wn. App. 89, 98, 6 P.3d 58 (2000); see also North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), rev’d on other grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989).  While the United States Supreme Court has held that double jeopardy prevents retrying a defendant on previously rejected aggravating factors supporting the death penalty, Bullington v. Missouri, 451 U.S. 430, 446, 101 S. Ct. 1852, 68 L. Ed. 2d 270 (1981), double jeopardy protections are generally inapplicable to sentencing proceedings. Powell, 2009 WL 4844354 at *8; Eggleston, 164 Wn.2d at 70-71.

As to the mandatory joinder rule:

After she withdrew her plea agreement, Elmore had yet to be tried for any offense and could not move to dismiss a related offense under CrR 4.3.1(b)(3). The prosecutor had discretion to amend the information, including adding new charges, under CrR 2.1(d). Elmore’s claim relating to the addition of predicate crimes and enhancements to the fourth amended indictment therefore fails. See also Powell, 2009 WL 4844354 at *8 (resentencing does not violate the mandatory joinder rule because aggravating circumstances do not constitute an offense). In addition, Elmore never moved to dismiss any additional charges before the second trial. Thus, she did not preserve the alleged error with respect to the alternative means of burglary. See RAP 2.5.  Elmore’s only vehicle for addressing this error is her claim that counsel was ineffective for failing to move to dismiss the additional offenses, an issue we discuss below.

7) Oddly enough, the trial court found aggravating factors by a preponderance after the jury found them beyond a reasonable doubt. Seeing as the sentencing was only done off the ones found by the jury, no harm, no foul.

Posted in Blakely, Criminal Law, Division II, Fourth Amendment, Judge David H. Armstrong - Draft Majority | Leave a Comment »

WA Legal Roundup: Division II

March 16, 2010 by Athena Boyer

Sprint v. Dep’t of Revenue

The Department conducted an audit of Sprint finding their transmission services for its SprintNet X 25 and Frame Relay network  were “network telephone services” subject to retail sales tax under statutory law. Sprint paid the assessment and filed a refund claim with the superior court. The superior court granted Department’s motion for summary judgment. Sprint appeals.

The Department argues that the statute is clear and that the services fall under “network telephone services.”  Sprint wishes the court to interpret the statute  with the subsequent amendments and taking into account contemporaneous federal regulations.

The court stated that the legislature’s intent in regards to this statue clearly meant to broadly define network telephone service.  Additionally the statute has clear exclusions, which does not include those at issue in this case.

While amendments existed, the court is not in favor of retroactivity.  They held that Sprint did not overcome the strong presumption in favor of prospective application. Thus, they find no err by the trial court and affirm. 

Posted in Division II, Judge Chris Quinn-Brintall- Draft concur in result, Judge David H. Armstrong - Draft Majority, Judge Marywave Van Deren - Concur in Majority, Tax | Leave a Comment »

WA Legal Roundup: Division II

March 16, 2010 by Athena Boyer

In re PRP of Carter

Carter was convicted of 1st degree robbery in 1998.  He had prior convictions in Oregon and California.  He appealed his conviction arguing that his right to a fair trial was violated when the jury saw him in shackles.  He also argued that he should not have received a persistent offender sentence because his California assault is not a "strike" offense compared to Washington’s "strike" offense.  The court of appeals held that that he was not prejudiced when a juror saw him in shackles and rejected Carter’s argument that his California assault was not comparable to the more serious offense in Washington.  The Supreme Court denied his petition for review.  He filed a habeas petition, which was dismissed as procedurally barred. In his PRP he seeks relief from he shackling and comparability issue.

The court stated that his petition was untimely as it was several years post conviction, thus, carter would have to meet an exception.  The court found no exception existed for the shackling argument and therefore held that the petition was untimely as to the same.

The court found an exception to the untimely petition regarding the comparability issue under the very rare “actually innocent” exception.  The court emphasizes that this exception is rarely used, however, finds that justice requires them to invoke the exception in this case.  They reason that the California offense is not legally comparable to the Washington second degree assault offense based on the different intent elements. The court vacated Carter’s persistent offender sentence and remanded for resentencing.

Posted in Criminal Law, Division II, Judge David H. Armstrong - Draft Majority, Judge Elaine Houghton - Concur in Majority, WA Court of Appeals | Leave a Comment »

WA Legal Roundup: Division II

March 16, 2010 by Athena Boyer

State v. Cardwell

Cardwell was convicted of possession of pot and bail jumping.  He appeals his conviction arguing for the first time on appeal that his vehicle was unlawfully searched and that the jury did not have sufficient evidence to convict him of bail jumping.  The court does not address his new argument regarding the unlawful search of his vehicle since he did not preserve it at trial.

Cardwell told the office upon arrest that he was living out of his vehicle.  A court date was set and Cardwell subsequently missed his hearing date.  Although, his father appeared to inform the court that the hearing notice had been sent to the wrong address.  His father notified the court that he did not know of his son’s whereabouts. The State amended their information to include bail jumping.  The court issued a bench warrant and he was arrested a few years later. At trial the state maintained that they did not have to prove that Cardwell knew of his actual hearing date just that he knew that he had to present at some undisclosed time and failed to do so. 

The court disagreed with the State and held that at the time of Cardwell’s release his future obligation to appear was contingent on the State filing criminal charges.  Moreover, there was not evidence that he had been given notice of the court date (even though the notice was sent to the address he listed upon arrest, but the record showed that he had not received the notice prior to arraignment).  The court held that the record lacked sufficiency of evidence to convict on bail jumping and remanded to dismiss the bail jumping conviction.

Posted in Criminal Law, Division II, Judge C. C. Bridgewater - Concur in Majority, Judge Chris Quinn-Brintall-Draft Majority, Judge J. Robin Hunt- concur in Majority, Search and Seizure, WA Court of Appeals | Leave a Comment »

WA Supreme Court: No-contact order re: children requires "reasonably necessary to serve the State’s interests."

March 11, 2010 by Justin Walsh

PRP of Rainey

Rainey was convicted of 1st degree kidnapping and telephone harassment. Essentially he kidnapped his daughter and took her to Mexico. As part of the sentence, the judge imposed a no-contact order for the statutory maximum of his sentence, which in this case was life. Rainey challenged the imposition under Blakely, however, “a Washington trial court has the discretion to impose a crime-related prohibition up to the statutory maximum for the crime of which the defendant is convicted without resort to aggravating factors of any kind.” Thus, Blakely was not violated.

As to his parental rights, here, the State has a compelling interest in protection of victims of crime from future harm. However, while the State has an interest in doing so, the scope must be analyzed in terms of the need. For instance, indirect contact through monitored letters may still protect the victim.

Of course, the court essentially gave the trial court the exact reasoning it would need to lay out to support a blanket no contact order (I always find unsubtle hints to lower courts amusing). Of course, because the blanket ban is reasonably necessary now does not mean that it will be reasonably necessary later, and the trial court needs to explain why lifetime is reasonably necessary.

Posted in Criminal Law, Justice Debra Stephens - Draft Majority, WA Supreme Court | Leave a Comment »

WA Supreme Court: Instruction needed for "personality disorder" when confining under the SVP laws

March 11, 2010 by Justin Walsh

In re Det. of Pouncy

A jury found Pouncy to be a sexually violent predator. Under the statute, an SVP is one who, “has been convicted of or charged with a crime of sexual violence and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility.”

Unfortunately, the trial court did not offer an instruction on what a personality disorder was, leaving the jury to fend for themselves. While it wasn’t defined by statute at the time (it has since been amended), Pouncy did offer an instruction on the matter, which was rejected by the court.

We have previously noted that “the term ‘personality disorder’ has a well-accepted psychological meaning” according to the Diagnostic and Statistical Manual of Mental Disorders (DSM). In re Pers. Restraint of Young, 122 Wn.2d 1, 50, 857 P.2d 989 (1993). The phrase “personality disorder” is not one in common usage and is beyond the experience of the average juror. It is a term of art under the DSM that requires definition to ensure jurors are not “forced to find a common denominator among each member’s individual understanding” of the term. State v. Allen, 101 Wn.2d 355, 362, 678 P.2d 798 (1984). We hold that Twining was wrongly decided insofar as it held that “personality disorder” is not a term in need of definition because it is not defined in the SVP statute.

The error was not harmless, because who knows what definition the jury used. It could have been “people who look just like Pouncy have personality disorders. Looks like he meets the definition.” As the jury was left to its own devices to determine what a personality disorder was, this will go back for a new trial (which isn’t double jeopardy, because civil commitments are…well..civil.

Also at issue was the court allowing the use of impeachment evidence against an expert. What impeachment evidence, you ask? Well, a prior judge had not allowed in the same expert in a previous case. This was of course done during a Frye hearing. It was improper to, instead of using a Frye hearing of its own, for the State to come back and use the previous Frye findings as impeachment evidence, because it was using a judge’s prior credibility determination in order to impeach in the current trial. The court explained this using an analogous federal case:

When a judge attacks a witness there is no effective defense. Peer review of such witnesses is different; if an expert does not act properly that expert ought to be attacked in the normal course of scientific debate — or in the case of a trial, with the opportunity for rehabilitation and explanation. To appropriately meet the evaluations of another judge would require the jury to delve deeply into the case that judge was trying. This enterprise is not appropriate under Rule 403.

Essentially, its allowing the former judge to impeach the witness, which is improper.

Posted in Chief Justice Barbara Madsen - Draft Dissent in Part, Justice Debra Stephens - Draft Majority, Sexually Violent Predator Law, WA Supreme Court | Leave a Comment »

WA Supreme Court: Enhancements not DJ; Expert OK

March 8, 2010 by Justin Walsh

State v. Aguirre

One of the hardest things to blog about are cases where really no new law is made. In this case, the court held the following:

  1. The prosecutions expert was hunky dory;
  2. Some testimony by the defense was properly excluded;
  3. Cross-exam was properly limited because the rape-shield law still exists;
  4. The Court’s instruction on “unlawful force” was proper;
  5. Refusing to continue sentencing isn’t an abuse of discretion, because, while you’re entitled to counsel, picking a particular counsel has limites;
  6. Sentencing enhancements are not a violation of double jeopardy laws.

All in all, rather boring, as far as the law is concerned.

Posted in Criminal Law, Justice Jim Johnson - Draft Majority, WA Supreme Court | Leave a Comment »

Court of Appeals: Div. III – Implanting Allergic Metals Into Patient’s Body Not A Violation of the Standard of Care

March 3, 2010 by Walt Williams

 

Eakins v. Huber

This is a medical malpractice case that was dismissed because the plaintiff’s medical causation evidence failed to meet the standard set forth in Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923).  “Under Frye, evidence derived from a scientific theory or principle is admissible only if the theory or principle has achieved general acceptance in the relevant scientific community.”

In September 2004, Dr. Huber implanted three stainless steel stents in Ms. Eakins’ right coronary artery.  The stents contained 10 to 14 percent nickel.  Eakins is allergic to nickel.  Following the surgery Eakins experienced continued problems including a rash at the operation site, episodes of joint pain and swelling, fevers, chills, sweating, elevated blood pressure, itching, and general aching.  These symptoms occurred two to three times a month and lasted for two to four days.  Eakins saw several doctors, but none were able to diagnose her condition or attribute her symptoms to the stents.

In August 2007, Eakins filed a medical malpractice suit against Huber claiming that he knew of of her allergy to nickel and thus his implantation of the nickel-containing stents fell below the standard of care.  Ms. Eakins medical expert, Dr. Adams, filed a declaration which stated, "on a more probable than not basis to a reasonable degree of medical certainty the care rendered to Sheri Eakins fell below the standard of care for a physician practicing in Washington State, and said failure resulted in injury to Ms. Eakins." 

Dr. Huber moved for summary judgment because there was a lack of competent medical evidence establishing a causal relationship between her symptoms and the stents.  This was based on Huber’s argument that Ms. Eakins’s theory of causation was not supported by sufficient scientific data or peer-reviewed literature indicating general acceptance of the theory in the pertinent medical community under Frye.  In response, Dr. Adams filed an additional declaration stating that the FDA had issued warning about implanting stents in patients with metal allergies and cited several medical articles linking these specific stents to allergic reactions. 

Dr. Huber, having a medical expert of his own, Dr. Ayars, filed a declaration stating: "on a more probable than not basis, that the field of medicine and in particular, the fields of allergy and immunology, have not generally accepted any causal relationship between the placement of a Taxus stent in a coronary artery and the development of a systemic reaction like that claimed by Ms. Eakins."  The trial court granted Dr. Huber’s motion and Eakins case was dismissed.

The Court of Appeals reviewed the summary judgment dismissal based on the application of the Frye test.  “We do not evaluate whether the scientific theory is correct, but whether it has achieved general acceptance in the relevant scientific community.”  The Court found that the medical literature provided by Dr. Adams did NOT establish expert consensus regarding the causation theory.  In addition, none of Eakins’ own physicians had concluded that the stents were the probable cause of her symptoms.  The trial court’s dismissal was affirmed. 

Benedryl

I’m wondering if a constant intake of Benedryl would combat the fact that you have something you are allergic to embedded in your body?!

Posted in Division III, Expert Opinion, Frye Test, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Draft Majority, Medical Malpractice, Rules of Evidence, Tort, WA Court of Appeals | Leave a Comment »

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