Archive for the ‘Judge Marywave Van Deren – Draft Majority’ Category
July 19, 2010
State v. Hopkins
Hopkins was down at a Marina with a girl. An officer found his truck, knew it was a high-burglary area, and then found the two strolling. During questioning, she gave her ID, he didn’t give his, then relented and went back to the truck to grab it. He was being a bit aggressive (stomping, shouting), while the girl just seemed embarrassed. While the cop was focusing on Hopkins, the girl pulled a knife and snuck behind the officer. Luckily for him, quick reflexes kept him safe, and he got both in custody without losing his life.
The issue came in deliberation. A juror (the one deadlocked juror of course, or this wouldn’t be interesting) told the presiding that while she initially though she could be impartial, she was sure now that she couldn’t. She asked to be removed. The judge was careful about not intruding on the deliberations, asking her typical for cause removal questions. She was excused and a verdict was returned.
Not improper.
Tags:fair and impartial, holdout juror
Posted in Criminal Law, Division II, Judge Marywave Van Deren - Draft Majority, WA Court of Appeals | Leave a Comment »
July 19, 2010
Puget Sound Medical Supply v. DSHS
Puget sound medical supply was dinged for medicaid overpayments. They were ordered to pay it back. They wanted to appeal it, but were a day late. If they could show their failure was with good reason, they get back into it. Good reason doesn’t appear much, but the court of appeals ruled that it was essentially good cause. PSM blamed the failure on the short time (but that’s in the rules, so that’s not good cause), office staff being out for the holidays, lead counsel leaving the firm, etc. etc. The problem is, courts have held that breakdown in office procedure doesn’t count as good cause, and that is all that happened here. No dice PSM.
Tags:administrative law, dshs, good cause, good reason, medicaid, overpayments
Posted in Administrative Law, Division II, Judge Marywave Van Deren - Draft Majority, Unanimous, WA Court of Appeals | Leave a Comment »
May 4, 2010
State v. McDaniel and Marlow (consolidated)
McDaniel appeals convictions of first degree attempted murder, first degree robbery and unlawful possession of a firearm. His accomplice, Marlow, appeals his convictions of first degree robbery and first degree unlawful possession of a firearm. They argue that the the court erred in admitting hearsay evidence of their nicknames, violating their sixth amendment right to confrontation, the court erred by refusing to sever the unlawful possession of firearms, and that their counsel was ineffective.
McDaniel: The court analyzed the hearsay testimony of the nicknames admitted under Crawford, asking whether the evidence was testimonial. Here, the court found that the out of court statements made under police questioning are testimonial. (The dissent argued that the nicknames were admissible under ER 804 (b)(4)). The court also found that the court abused its discretion when they admitted evidence of his resisting arrest and flight. The court held that these errors were not harmless and remanded for a new trial.
The appeals court affirmed Marlow’s convictions.
The court held that the defendants failed to renew their severance motions during trial and held the issue was waived.
The court held that McDaniel’s and Marlow’s argument regarding ineffective assistance of counsel fail.
Posted in Confrontation Clause, Constitutional Law, Criminal Law, Division II, Evidence, Hearsay, Ineffective Assistance of Counsel, Judge Chris Quinn-Brintall- Draft Dissent, Judge David H. Armstrong - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Sixth Amendment, WA Court of Appeals | Leave a Comment »
April 28, 2010
Young v. Savidge
Dentist Savidge recommended a porcelain-capped crown on one of Young’s molars. Savidge’s website states that his crown’s are made of gold or porcelain and temporary crowns are “can be made of stainless steel.” She had the crown put in and later felt a burning, confusion, fatigue, and discoloration. She presented to another dentist who determined that the crown was made of mostly nickel, a known toxic metal. Young sued Savidge and argued that he committed medical malpractice, engaged in misrepresentation, violated the CPA, and breached their contract. She gave Savidge notice of intent to sue. The trial court granted summary judgment in favor of Savidge because Young failed to bring her claim within the allotted statute of limitations and for failure to file a certificate of merit.
Young appeals arguing that her informed consent claim did not fall under the Medical Malpractice SOL. The court disagreed holding that the claim did fall under the medical mal SOL because the dentist was engaged in health care when he failed to inform her of the risk of nickel. The claim was time barred for failure to bring within three years of the act or one year of discovery, even with the statutory amendments that allow for 90 day tolling and an additional five days Young was 3 days late in filing her suit.
Young argues that the breach of contract claim should not have fallen under the med mal statute even though it arose out of health care. The court disagreed and held that the claim was time barred under the same analysis as above.
Young argues that her intentional misrepresentation claims should not have fallen under the med mal statute. The court agreed and held that intentional misrepresentations are not governed by the med mal statute, however whether the claim was time barred under the general three year statute remains a material fact as to when Young discovered the facts constituting fraud.
Similarly the court found that there was a genuine issue of material fact as to whether the CPA claims are governed under the former RCW 4.16.350(3). The court remands for a trial on the merits.
The trial court also held that Young failed to file a certificate of merit. Putnam changed the law on the certificate of merit issue holding that this step is not required of medical malpractice cases. The court of appeals held this decision applies retroactively and thus the trial court erred in its granting of summary judgment on that issue.
Posted in Consumer Protection, Contracts, Division II, Judge David H. Armstrong - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Medical Malpractice, Notice of Claims, Statute of Limitations, Tort, WA Court of Appeals | Leave a Comment »
April 25, 2010
State v. Breitung
Breitung was charged with two counts of second degree assault and one count of unlawful possession of a firearm. Two men alleged that he pulled a gun on them and told them to leave or he would kill them. Breitung stated that he pointed a microscope at the men and not a gun. The jury instructions submitted detailed the crimes charged. His defense counsel did not request an instruction on the lesser included crime of fourth degree assault. The jury convicted him of all three counts, however, failed to complete the special verdict form asking whether he was armed with a firearm.
Breitung argued that his counsel was ineffective for failing to propose the lesser included offense. The court agreed holding that Breitung showed that his defense counsel did not have any tactical reason for not including the instruction and that, had his counsel included it, the outcome would likely have differed. The court also reasoned that the juries failure to complete the verdict form likely showed they believed Breitung was guilty of some type of assault but maybe disagreed as to whether he had a gun or a microscope and therefore there was reasonable probability that the the outcome would have differed.
Breitung also confronted his conviction on his unlawful possession of a firearm. He was previously convicted- several years earlier- of assault. He made a motion during trial to dismiss his unlawful possession charge arguing that he was not given statutorily required notice regarding his loss of right to bear arms. The court agreed that he was not given proper notice after his earlier conviction and dismissed with prejudice.
Posted in Constitutional Law, Criminal Law, Division II, Ineffective Assistance of Counsel, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar- Draft dissent, Judge Marywave Van Deren - Draft Majority, WA Court of Appeals | Leave a Comment »
February 2, 2010
State of WA v. Alvarez-abrego
Alverez-abrego was caring for his girlfriend’s children. When the children’s mother returned and noticed that one of the children had a swollen head she took the child to the hospital and the child was diagnosed with a skull fracture. The mother told the doctor that one of her children had stated that Alverez-abrego had thrown the injured child against a wall. The trial court allowed this double hearsay to come in through the doctor who was not allowed to state who allegedly threw the child but just that he sustained the injury from being thrown against a wall. Alverez-Abrego was convicted. He appeals his conviction, arguing that the court erred in allowing the hearsay within hearsay thereby violating the confrontation clause.
The appeals court held that the trial court erred in admitting the double hearsay because there was no exception for the child’s statement to the mother since the child was an uninjured declarant. The appeals court, however, held that the error was harmless because the State had established “overwhelming untainted evidence of Alvarez-Abrego’s guilt.”
Affirmed.
Posted in Confrontation Clause, Constitutional Law, Criminal Law, Division II, Judge Chris Quinn-Brintall- Draft concur in result, Judge David H. Armstrong - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Sixth Amendment, WA Court of Appeals | Leave a Comment »
October 23, 2009
Dill v. Michelson Realty Co. et al
The Dill’s brought an action against the defendants under the Residential Landlord- Tenant Act. The Dill’s leased property and a storage area from the defendants and claim that they destroyed and disposed of some of their property in the storage area.
The case was moved to mandatory arbitration and the Dill’s agreed to waive any amount over $50,000.00. The arbitrator found in their favor awarding them $45,000.00 and a separate attorney’s fee award of $27K. The Defendants moved for entry of judgment on the arb award but with a modification to include all fees, costs and award to be a total of $50,000.00. The Dills argued that the $50,000.00 limit was exclusive of fees, interests, and costs. The trial court entered judgment with no modification.
The defendants appeal the trial court’s judgment confirming the arbitration award arguing that because the award was higher than $50,000.00 it was erroneous as a matter of law. The Dills argue that the trial court’s entering of judgment is not appealable.
The Appeals Court agrees with the Dills. They hold that the trial court’s entering of judgment is not appealable. They state that the purpose of mandatory arbitration is to alleviate the court congestions. Moreover, they found that there is a means to appealing the arbitration through trial de novo, which was not properly requested.
The Appeals Court dismissed the appeal and award the Dill’s fees.
Posted in Appellate Procedure, Civil Procedure, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Landlort Tenant, Mandatory Arbitration, Mandatory Arbitration Procedure, WA Court of Appeals | Leave a Comment »
October 14, 2009
In re: Pers Restraint of Clyde R. Spencer
Spencer was charged with sexual abuse of his son, daughter, and stepson. He entered an Alfred plea and served 20 years in prison until his sentence was commuted to community custody. He knows files a PRP with signed declarations from his son and daughter- both now adults- claiming that he never abused them.
The son and daughter had the same testimony throughout cross examination The appeals court found several other irregularities throughout the case including the State’s withholding of the medical examinations and the disclosure of the mother of one of the victims affair with one of the investigation detectives.
The state argued that M.S’s statement was not credible based on the In re Pers. Restraint of Clements. Spencer distinguished the case, and the court agreed that the statement from M.S was credible and was not inconsistent.
Based on the above evidence the appeals court felt they had no choice but to grant Spencer’s petition and remand to the trial court to withdraw Spencer’s Alford plea.
Posted in Criminal Law, Division II, Judge Elaine Houghton - Concur in Majority, Judge J. Robin Hunt- concur in Majority, Judge Marywave Van Deren - Draft Majority, WA Court of Appeals | Leave a Comment »
September 1, 2009
Gates v. Port of Kalama et al
Whoo hoo… an opinion in favor of “the little guy” and in my favorite field to boot, PI. Finally something more fun than taxes, crimes, and more taxes in Division II. (Sorry all you lovers of tax).
Gates slipped and fell on some stairs while she was viewing a rental property owned by the Port injuring her head and neck. She sent a letter to the Port describing the occurrence as the instructions in a letter sent to her had required. She signed the letter but did not verify. She hired an attorney who had some communication with the Port, but after settlement was not reached, filed a lawsuit against them within the statute. The Port answered that Gates failed to comply with the claim filing statute (RCW 4.96.020) because Gates failed to verify her claim. The Port appeals from the trial court’s denial of their summary judgment on that basis.
Gates argues, and this Court agrees, that the RCW listed above does not require claim verification. The court ruled that the plain language of the statue did not require claim verification but required only that, “claims… must locate and describe.” the relevant facts of the incident. The Court decided that the statute only mentioned verification of forms when it states, “if the claimant is incapacitated from verifying, presenting, and filing the claim in the time prescribed…”
Although the Court found that the statute’s plain language did not require claim verification they continued to justify their analysis by ruling that the legislative history confirms their interpretation of the statute. The court reviewed the 1993 amendment notes and analyzed that the legislature clearly departed from an intent to require verification.
I sure hope Gates requested attorneys fees! Great outcome in this case.
Posted in Civil Procedure, Division II, Government Claim Forms, Judge C. C. Bridgewater - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, Tort, WA Court of Appeals | Leave a Comment »
August 26, 2009
State v. Kennealy
Kennealy appeals his many convictions of child rape, child molestation, and assault with sexual motivations. The charges concerned three children ages 5, 6, and 7. Kennealy argues on appeal that the trial court erred in admitting several child hearsay statements, finding that one of three children were competent to testify, and argues that the prosecutor committed misconduct when he referred to Kennealy’s past misconduct with children as part of a common scheme or plan in closing arguments.
Preceding trial, the court held competency hearings for the children involved as well as a hearing relating to the admissibility of several child hearsay statements. The court found all three children competent despite that one of them suffered ADD and there was some confusion in his testimony about “promises.” On appeal, this court held that the trial court did not error and affirmed all the convictions.
The appeals court ruled that the trial court did not error in finding that S.J was competent to testify. The court reasoned that while S.J was interviewed he listened very carefully to all the questions, had an adequate memory of what happened to him, and the mental capacity to relay that information to the court. Despite the fact S.J suffered from ADD, he could listen to each question and provide accurate information.
In determining the child hearsay statements admissibly the trial court considers the 9 Ryan elements, though the factors are considered on an overall evaluation. The appeals court found, after reasoning that the children did not have a reason to lie, they had been trustworthy and had reputations for truthfulness, that each child told the same accusations to more than one person over time, the statements were spontaneous when recanted back, and that the statements were made soon after the events occurred preserving the memory of the incident, that the trial court did not error in determining that the child hearsay statements were admissible.
In regards to the prosecutorial misconduct, the court reasoned that the common features between his prior misconduct and the misconduct charged at trial showed a plan to “gain access to children in order to repeatedly sexually abuse young children.” The court did not find the statements to be too prejudice that it outweighed their probative value. Moreover, the court argued that the trial court gave limiting instructions to the jury regarding the defendants prior misconducts were heard by the jury.
Posted in Criminal Law, Division II, Judge Elaine Houghton - Concur in Majority, Judge Joel Penoyar - Concur in Majority, Judge Marywave Van Deren - Draft Majority, WA Court of Appeals | Leave a Comment »
