Archive for the ‘Judge J. Robert Leach – Concur in Majority’ Category
May 12, 2010
State v. Coleman
Donshae Coleman was convicted of first degree robbery as an accomplice, second degree assault, possession of a stolen motor vehicle and bail jumping. All of the convictions, except the one for bail jumping were affirmed on appeal.
The Court of Appeals determined that the State had failed to meet its burden with regard to the bail jumping conviction. Mr. Coleman had been ordered to appear for a hearing at 9:00 a.m. The court’s records indicated only that he had not appeared at 8:30 a.m. As such, the state failed to show that Mr. Coleman had not appeared at 9:00 a.m. The bail jumping conviction was reversed.
The State’s Burden: Even if a criminal defendant can’t show up on time, the court should be able to do so.
Posted in Criminal Law, Division I, Judge J. Robert Leach - Concur in Majority, Judge John Michael Meyer (Pro Tem) - Draft Majority, Judge Stephen J. Dwyer - Concur in Majority, WA Court of Appeals | Leave a Comment »
April 29, 2010
Matsyuk v. State Farm Fire & Casualty Co.
Olga Matsyuk was injured while riding as a passenger in a car. As a passenger in the car, she was a third party beneficiary under the driver’s Personal Injury Proptection (PIP) policy. She also recovered from the driver’s liability policy. She sought attorney fees for creating a “common fund.” This was premised on the Supreme Court’s decisions in Mahler v. Szucs, Winters v. State Farm Mutual Automobile Insurance Co. and Hamm v. State Farm Mutual Automobile Insurance Co. The Court of Appeals held that no “common fund” was created in this case and, therefore, there was no equitable rationale to award attorney fees.
The Court of Appeals claimed to have adhered to its earlier decision in Young v. Teti. That case was decided before Winters and Hamm. Most assumed it was no longer good law after Winters and Hamm. The Court of Appeals noted that it had not been expressly overruled by Winters and Hamm. Look for the Supreme Court to grant review in this case.
Posted in Contracts, Division I, Equity, Insurance, Judge J. Robert Leach - Concur in Majority, Judge Marlin Applewick - Draft Majority, Judge Ronald Cox - Concur in Majority, WA Court of Appeals | Leave a Comment »
March 3, 2010
Black v. National Merit Ins. Co.
The Black family was severely injured in a crash with a vehicle driven by Marissa Goodell, a teenager who was allegedly driving a pickup truck in an unsafe manner. Ms. Goodell was killed in the crash.
Tracy Radcliffe was also in the in the truck with Ms. Goodell. The Blacks alleged that Ms. Radcliffe was also at fault in causing the crash. Ms. Radcliffe’s parents had a liability auto insurance policy and Ms. Radcliffe was an “insured” under the policy because she was a family member.
The Blacks claimed that Ms. Radcliffe’s policy provided coverage to them because Ms. Radcliffe was riding in a truck that was insured by another insurance company.
The Court of Appeals rejected this argument, holding that an interpretation of the policy in that manner would mean that Ms. Radcliffe’s insurer would provide coverage for every vehicle in the universe.
Posted in Contracts, Division I, Insurance, Judge J. Robert Leach - Concur in Majority, Judge Marlin Appelwick - Concur in Majority, Judge Ronald Cox - Draft Majority, WA Court of Appeals | Leave a Comment »
January 26, 2010
Federal Way School District v. Vinson
David Vinson was an openly gay high school teacher at Federal Way High School. At a Taco Time restaurant, he ran into a student that had apparently harassed him in the past. They called each other some naughty names and then both lied to a school investigator about it. At a disciplinary hearing to determine whether he could be fired, the hearing officer determined that his conduct did not rise to the level of a fire-able offense.
The Federal Way School District asked the superior court for review. The superior court denied the request for review and awarded attorneys fees to Mr. Vinson. The School District then asked the Court of Appeals to review the denial of review. The Court of Appeals agreed to do so and found that the conduct was so offensive as to justify termination.
A strongly worded dissent by Judge Dwyer stated that because the school district did not have a right to appeal the hearing examiner’s findings because the statute doesn’t allow it and because the case was moot, the court should not have heard the case. Mr. Vinson no longer objected to the termination and waived his attorneys fees. He is suing the school district civilly.
I don’t have a crystal ball or an “in” at the Supreme Court, but my money is on the Supreme Court taking a look at this case should the parties seek review. I can’t say who, for sure, but I suspect there are a few justices that would agree with Judge Dwyer.
Posted in Attorney's Fees and Costs, Contracts, Division I, Education Law, Employment, Judge J. Robert Leach - Concur in Majority, Judge Marlin Applewick - Draft Majority, Judge Stephen J. Dwyer - Draft Dissent, WA Court of Appeals | Leave a Comment »
January 4, 2010
State v. Scherner
Roger Scherner was convicted of three counts of first degree child molestation. Mr. Scherner is a California resident, who molested several family members who were under age. Evidence of prior molestations of women who were under age when they were molested by him was admitted at his trial over his objections under ER 404(b). He claimed that a statute, RCW 10.58.090, which made such evidence was admissible, was an unconstitutional ex post facto law.
The Court of Appeals affirmed his convictions, holding that the prior molestations were part of a common plan or scheme and that RCW 10.58.090 was not an ex post facto law because it did not change the fact that the State still had to prove that he had committed the prior molestations in order to offer the evidence that he had committed them. The Court of Appeals also rejected arguments based on the Equal Protection Clause, the Due Process Clause and the separation of powers doctrine.
The Court of Appeals also rejected an argument that Bellevue Police Detective Jennifer Robertson had violated RCW 9.07.030 by intercepting telephone conversations where not all parties had consented to the recording.
The Court of Appeals also rejected the argument that the spousal privilege should have prohibited admissions made to Mr. Scherner’s spouse or that admission of that evidence was harmless.
Posted in Constitutional Law, Criminal Law, Division I, Judge Ann Schindler - Concur in Majority, Judge J. Robert Leach - Concur in Majority, Judge Ronald Cox - Draft Majority, Juror Misconduct, WA Court of Appeals | Leave a Comment »
January 4, 2010
State v. Scherner
Roger Scherner was convicted of three counts of first degree child molestation. Mr. Scherner is a California resident, who molested several family members who were under age. Evidence of prior molestations of women who were under age when they were molested by him was admitted at his trial over his objections under ER 404(b). He claimed that a statute, RCW 10.58.090, which made such evidence was admissible, was an unconstitutional ex post facto law.
The Court of Appeals affirmed his convictions, holding that the prior molestations were part of a common plan or scheme and that RCW 10.58.090 was not an ex post facto law because it did not change the fact that the State still had to prove that he had committed the prior molestations in order to offer the evidence that he had committed them. The Court of Appeals also rejected arguments based on the Equal Protection Clause, the Due Process Clause and the separation of powers doctrine.
The Court of Appeals also rejected an argument that Bellevue Police Detective Jennifer Robertson had violated RCW 9.07.030 by intercepting telephone conversations where not all parties had consented to the recording.
The Court of Appeals also rejected the argument that the spousal privilege should have prohibited admissions made to Mr. Scherner’s spouse or that admission of that evidence was harmless.
Posted in Constitutional Law, Criminal Law, Division I, Judge Ann Schindler - Concur in Majority, Judge J. Robert Leach - Concur in Majority, Judge Ronald Cox - Draft Majority, Juror Misconduct, WA Court of Appeals | Leave a Comment »
November 24, 2009
State v. Lui
Sione Lui was convicted of second degree murder for the strangulation death of his fiancée, Elaina Boussiacos. He argued on appeal that his Sixth Amendment right to confrontation was violated because the medical examiner that performed the autopsy was not called as a witness. Instead, the medical examiner’s supervisor, who had overseen all of the investigation and signed off on the medical examiner’s report was called.
The case hinged on whether the report itself was “testimonial” under Crawford v. Washington and the more recently decided Melendez-Diaz v. Washington. The Court of Appeals determined that Melendez-Diaz was distinguishable. In Melendez-Diaz the U.S. Supreme Court held that admission of chemical drug test report that was submitted at trial without the testimony of the scientist violated the Sixth Amendment.
Unlike in Melendez-Diaz, however, a medical examiner who had signed off in the report in Lui was called to testify and subjected to “the crucible of cross examination.”
Look for the Washington Supreme Court and perhaps the U.S. Supreme Court to take a look at this case.
Posted in Confrontation Clause, Constitutional Law, Criminal Law, Division I, Judge J. Robert Leach - Concur in Majority, Judge Linda Lau - Draft Majority, Judge Mary Kay Becker - Concur in Majority, Sixth Amendment, WA Court of Appeals | Leave a Comment »
November 19, 2009
State v. Bickle
Bickle was convicted of manufacturing and possession of meth and manufacturing and possession of pot. He appeals his resentence, arguing that the trial court erred in treating these crimes separately for sentencing purposes when they stemmed from the same criminal conduct. The trial court specifically found that the four charges were not from the same criminal conduct. Bickle argues the charges were from the same criminal conduct because they occurred at the same time and place and that the objective intent was the same. The state argued that the objective intent was different because the charges were for two separate drugs and the manufacturing process for each differs.
The appeals court agreed with the trial court in respect to the separate drugs. The appeals court held that the manufacturing of marijuana and meth did not share the same objective criminal intent because they were separate substances and the process was substantially different.
The appeals court disagreed with the trial court in respect to the same substance. The appeals court found that manufacturing and possessing the same drug amounts to the same objective criminal intent. The appeals court dismissed the state’s argument that the crimes were committed in different parts of Bickle’s house and occurred at different times. They argued that in order to manufacture marijuana one uses marijuana seeds and the RCW’s amount possessing seeds to possessing marijuana. Therefore, in order to make pot you must possess it and Bickle possessed it in order to make it.
The appeals court reversed for resentencing and held that the trial court abused its discretion when they calculated Bickle’s marijuana manufacturing and possession convictions separately at sentencing.
Posted in Criminal Law, Division II, Judge Elaine Houghton - Concur in Majority, Judge J. Robert Leach - Concur in Majority, Judge Joel Penoyar- Draft Majority, Sentencing, WA Court of Appeals | Leave a Comment »
