Prop 8 overturned!
You can read the full text of the opinion here. The 9th Circuit will be next, and I have a feeling this is headed to the Supreme Court. Maybe we can get some more sodomy–>pedophilia–>necrophilia slippery slope analysis from the very serious Antonin Scalia.
Tracer caused an auto accident. Tracer had a .13 blood alcohol level, however, argued that it was a meteor that caused the accident and not his blood alcohol level. Due to that, the special deputy prosecutor had agreed to amend the information and allow Tracer to plead guilty to a DUI instead of vehicular assault. The special deputy prosecutor didn’t show up for the hearing. The judge assigned a defense counsel in court representing another defendant as special deputy prosecutor who, in turn, amended the information and entered Tracer’s plea that same day at the court’s direction.
The state appealed the judgment and sentence entered. The issues facing the court were: 1) whether the State had a right to appeal, 2) whether it was a violation of separation of powers for the superior court judge to appoint a defense counsel as special deputy prosecutor, and 3) whether due process and/or double jeopardy prohibited a remand.
The Court of Appeals held that the state had a right to appeal under the extraordinary circumstances element under RAP2.2(b)(1). The state demonstrated that the superior court deviated from its accepted and usual practice of judicial proceedings calling for availability of review.
The Court of Appeals held that the trial court lacked authority to amend the information and wrongly appointed a new special deputy prosecutor to do the same. Therefore, the court ruled that the amendment was invalid and Tracer’s charge of vehicular assault remains.
Finally, the Court of Appeals ruled that because the second special prosecutor was improperly appointed and his conduct was without lawful authority, a remand did not violate due process or double jeopardy.
Toth appeals his conviction for driving under the influence. During the rebuttal argument of the state, the prosecutor argued that Toth failed to give any evidence that corroborated his testimony. Toth argues on appeal that during that rebuttal the state shifted the burden to Toth.
The appeals court agreed with Toth. They ruled that it improper for the state to imply that a defendant has a duty to present evidence. The Court argued that the state broke that rule and implied that Toth had to present evidence when the prosecutor argued on rebuttal that Toth failed to present any corroborating evidence.
Reversed and remanded with instructions to dismiss without prejudice.
McCormick appeals her conviction for methamphetamine possession, arguing that the search and seizure wherein the police officer discovered the drugs was an illegal search and seizure in violation of her constitutional rights and rights to privacy. McCormick was a passenger in a vehicle that was pulled over for broken taillight. Upon discovering that the driver of the vehicle had a warrant for her arrest for failure to pay tickets, the police officer arrested the driver and searched the vehicle, including a bag belonging to McCormick located on the floor of the front passenger side of the vehicle.
After conviction, but prior to the appellate hearing, the Supreme Court issued Arizona v. Grant, which held that a search, practically identical to the one involving McCormick that lead to the discovery of meth, was unconstitutional and violated the search and seizure rights of the Fourth Amendment.
The court first determined that the ruling in Grant applied to McCormick’s case even though she had already been convicted. The court decided that the case did apply because cases were to apply retroactively to all similarly situated defendants in Washington. Moreover, the court determined that McCormick had preserved the matter for appeal.
Finally, the court applied the Fourth Amendment and the Grant case to McCormick’s case. The court held that similarly in Grant, the search was unlawful because the driver could not have accessed the car to retrieve weapons or evidence at the time of the search and that the police had no possibility of discovering the drug related evidence without a search. Moreover, the court reasoned that, like in Grant, there was no officer safely justification for the search. The State argued that the office searched the vehicle in good faith, relying on pre-Grant law, however, the court rejected the good faith argument in favor of the doctrine of retroactivity.
McCormick’s conviction was reversed.
Sims appeals his sentence banishing him from Cowlitz County as a violation of his due process rights and equal protection. Sims was charged with 1st degree child molestation and plead guilty. He underwent a psychosexual examination for a pre-sentence report. The report determined that he would present a very low risk for recidivism if allowed to stay in the community. Based upon the results, the DOC recommended suspending the confinement portion of the sentence under SSOSA (special sex offender sentencing alternative). The trial court banned him from the county in which the child he molested lived.
The State concedes the error and argues that the case should be remanded back to the trial court for “broader resentencing and reconsideration.”
To survive strict scrutiny the banishment must be narrowly tailored to serve a compelling government interest. The court holds that the banishment of Sims was not narrowly tailored and that there could have been other restrictions imposed to protect the child and her family from Sims.
The court vacates Sims’s sentence and remands back to the trial court for resentencing. Sims argues that on remand the trial court should not be able to reconsider its SSOSA decision because if allowed to do so it will “chill criminal appeals.” The court finds the argument compelling, but nevertheless agrees that the trial court should be allowed to reconsider the SSOSA decision.
On appeal of his conviction for delivery of controlled substance, Lackey argues that the trial court erred in denying his motion to dismiss his case for violations of speedy trial rights under CrR3.3. In Washington a defendant must be brought to trial 90 days after he is arraigned. Here, Lackey was not tried for 323 days after arraignment.
Lackey was released on bond. Lackey filed a motion of prejudice against the only judge in Jefferson County. His first attorney made a motion to withdraw which was denied on the first attempt but granted on the second. At that time the court told Lackey that his speedy trial was restarting yet made him sign a waiver nevertheless. The State moved for two continuances due to unavailable witnesses, which were granted. Lackey agreed to the second continuance and signed another speedy trial waiver. The third continuance in the case was made by Lackey’s attorney for additional preparation time and the court granted but treated it as a waiver of his speedy trial rights. After more delays due to the State, defendant, and court congestion, his trial finally began on March 24th.
The appeals court reviews de novo. The court went through each continuance requested and analyzed each delay. They found that each continuance met various criteria of CrR3.3 whether because of the waivers or the clock re-setting after a continuance was requested. Therefore, the court held that Lackey’s speedy trial rights were not violated.
The court also did an analysis under the state and US constitutional right to speedy trial. The court used the test created in Barker v. Wingo, wherein the court balances the conduct of the defendant and the state. The test also looks at factors such as length of the delay, the reasons for the delay, and prejudice to the defendant. There is presumed prejudice if the trial date is more than eight months after arraignment- so this factor was weighted in favor of Lackey, however, the court ultimately holds that Lackey’s constitutional right to a speedy trial were not violated because the other factors are not clearly in his favor. For example, the court points out that Mr. Lackey does not argue that the delay caused any prejudice or impairment to his defense. Moreover, the court mentions that 2 of the 3 state’s requests for continuance were because of a police officer’s illness- reasonable excuses to continue
Hager appeals the trial court’s denial of his Motion for a New Trial after a State’s witness violated a pre-trial order preventing him from testifying that Hager was evasive during police interrogation. Hager argued that the trial court violated his Constitutional right against self-incrimination when they refused him a new trial after the State’s witness violated the pre-trial order.
The State tries to distinguish this case from the Easter case, almost identical to the case at hand by arguing that the witness’s statement was isolated and merely a reference to the defendants silence and not a comment. The court disagrees with the State and rules that a comment is one where the State is using the defendants silence as evidence evidence of guilt, which is what the court found to be the case here.
The appeals court agreed with Hager and ruled that his right against self incrimination was violated when the trial court did not find a mistrial after the State’s witness testified regarding Hager’s evasiveness during police questioning. The court reversed, and remanded the case for a new trial.
Judge Hunt dissents.
Thomas was convicted of 8 counts of witness tampering. He appeals arguing that his conduct should be treated as “one unit of prosecution for double jeopardy purposes.” The court ruled that to determine whether double jeopardy principles were violated where a defendant is convicted of many violations under the same statue, the court establishes which unit of prosecution the legislature intends as the punishable act.
Here, Thomas argues (and the dissent agrees) that the “unit of prosecution” is each individual witness. Here, Thomas’s attempts to change only one witnesses testimony, eight different times and he therefore argues that there exists only one unit of prosecution.
The majority disagrees and held that his convictions are properly separate and thus do not violate the double jeopardy clause. The majority basis its conclusion on the analysis that “the State does not argue that each telephone call supports a separate witness tampering charge in this case. The breaks in time, the method (multiple phone calls over multiple days), and differing and distinct manners in which Thomas attempted to induce [the witness] to testify falsely,” all support the eight separate attempts and subsequent convictions.
Ford appeals his convictions of third degree child rape and second degree child rape. Ford had two sexual encounters with a minor- once while the minor was 13 and the other while the minor was 14 (hence the different degrees).
After jury deliberation, the jurors returned their verdict forms. The trial judge began to read that the jury found the defendant guilty of third degree rape but paused after noting that the second verdict form for first degree rape was blank. The Judge sent the jurors back to deliberate and gave an oral instruction that they must reach a verdict. Ford failed to object to this oral instruction at trial but the appeals court allowed Ford to raise the appeal for the first time on appeal because a constitutional violation was alleged- prejudice. The trial court’s decision was reviewed on a abuse of discretion standard.
Ford argued that this abuse of discretion reveals a substantial likelihood that the trial irregularity affected the jury verdict. He argues that the court forced the jury to return a verdict on first degree child rape contrary to case law and CrR 6.15 when the judge instructed the jury to return to deliberations because the verdict form for first degree rape was blank and “it must be filled in.’” The appeals court held that it is “substantially likely that the court’s instruction affected the outcome of Ford’s trial.” The appeals court found this to violate Ford’s constitution right to a fair trial.
The court also reversed the lifetime no-contact order with the minor because they reversed count I (first degree child rape).
In regards to second degree rape, Ford argues that the cumulative affect of multiple trial court errors including ineffective assistance of counsel, the trial court’s error in allowing the State to amend the information, and that jurors stricken for comments relating to personal rape stories and their inability to be partial affected his right to an impartial jury trial. The appellate court did not find a cumulative effect of these nonreversible errors to have materially affected the outcome of the trial. Thus the appellate court affirmed Ford’s second degree child rape conviction and remanded for sentencing.
Justin P. Walsh is an Associate Attorney at Floyd, Pflueger & Ringer, P.S.
Ryan Carson is an associate attorney at Robinson & Tait, specializing in mortgage and real estate law.
