Archive for the ‘Justice Debra Stephens – Draft Concurrence’ Category

WA Supreme Court: Prosecutors Can Flaunt Truthiness Clause in Testimony Contract

October 20, 2010

State v. Ish

This is a very bad morning comedically for me. I went on a run at 5:30. I came back. I went to work. I’d rather just take a nap. But here I am…handed a softball like “Ish”, and I’m too tired to make a poop joke. I’m too tired to make a running gag where I just substitute “ish” for is. My brain has just given up.

Anyhow, I suppose we should talk about the case. Well, its a 4-4-1, so the only law made is where the 4 converge with the other 4. Let’s see what they say. Turns out this is a murder case where the prosecutor entered into an agreement with a witness, which required he testify truthfully. During the testimony, the prosecutor whips out the contract and uses it to talk about how the witness will be truthful. Vouching, right? THe court agreed….or at least the lead opinion agreed. The concurrence says this really isn’t misconduct, because an adept defense attorney sees that as a gold mine for impeachment of the witness.

I tend to agree with both. I think an objection can be made, but wouldn’t you rather do the following:

A: Mr. Jones, you came here today to testify against my client?

W: Yes, I did.

A: And you were recommended leniency in exchange for your testimony?

W: Yes.

A: In fact, they made you sign a contract.

W: Yes.

A: They made you sign a contract that you would testify here.

W: Yes.

A: They made you sign a contract that you would testify here and that you would be truthful.

W: Yes.

A: And they wouldn’t give you leniency unless you signed this contract

W: No, they wouldn’t give it to me unless I signed.

A: They wouldn’t give you leniency unless you signed a contract to be truthful.

W. No.

A: So they didn’t trust you to testify truthfully unless they got it in writing?

The dissent by Sanders would have reversed. The law made here today is it was error, but the court of appeals is affirmed anyhow.

 

Blakely Strikes Again: Trial Courts Can Impanel Juries on Remand; RCW 9.94A.537 applies retroactively

December 18, 2009

State v. Powell

In a 4-2-3, split, the Washington Supreme Court held: 1) RCW 9.94A.537, the statute allowing a court to impanel a jury to decide aggravating factors, applies retroactively and 2) because it applies retroactively, the trial court on remand from a Blakely PRP, could impanel one here.

The wrinkle comes from the fact that the amendment provides for notice that the state will be seeking aggravating factors. The court held that the amendment for notice includes the word may, not shall.

Quick mental check. Would a prosecutor EVER give notice then if they didn’t have to? Seems you’re pragmatically castrating the statute by interpreting may in such a way. But that’s neither hear nor there, because, once it was realized that people who are on remand didn’t get notice, another fix was initiated:

In any case where an exceptional sentence above the standard range was imposed and where a new sentencing hearing is required, the superior court may impanel a jury to consider any alleged aggravating circumstances listed in RCW 9.94A.535(3), that were relied upon by the superior court in imposing the previous sentence, at the new sentencing hearing.

Essentially, the fact that you were convicted of them before is your notice. The lead opinion also held that there is no requirement to charge aggravating factors in the information.

Because this is a split decision, the limitations imposed by the concurrence make a huge difference:

     I concur in the result reached by the lead opinion because I believe RCW 9.94A.537(2) provides a constitutionally permissible means for a trial court to impanel a jury for purposes of resentencing. I write separately, however, because the lead opinion is mistaken in its interpretation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). The lead opinion interprets Blakely to require that aggravating factors be proved to the jury but not that they be charged in the information. Lead Opinion at 11. I disagree. Any facts justifying a sentence above an offense’s standard sentencing range are functionally equivalent to elements of the crime. Blakely, 542 U.S. at 303; Apprendi v. New Jersey, 530 U.S. 466, 494 n.19, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Such facts must be found by a jury beyond reasonable doubt. Blakely, 542 U.S. at 301.

Well now we’re in a pickle. If JJ Stephens and C. Johnson are of the opinion they need to be in the information, the opinion of the dissenters, if concurring, could have an effect. The dissent was all piss and vinegar regarding the need to provide for the aggravating factors in the information. Justice Stephens notes that it is impossible to do so now, and the dissent’s route wouldn’t allow any resentencing procedure.

Essentially, from here on out, you must charge the aggravating factors in the information. But post-Blakely remands can still go forward with an impaneled jury.

WA Legal Roundup – Washington Supreme Court

June 25, 2009

Woohoo! A milestone! The first new opinion to grace the new site! I’m a little excited.

Estate of Haselwood v. Bremerton Ice Arena, Inc.

I love it when the title of a case immediately makes you think of an Agatha Christie novel. Death and intrigue on ice. Did it involve a love affair between an ice skating couple that turned sour when the rink manager became involved? Not quite.

See, the Haselwoods lend money to BIA to construct an ice arena on land owned by the City. BIA secured the loan with the land the ice rink would be on, but which they didn’t actually own (oops), as well as the improvements on the land. Starting to sound like a bar question yet? The Haselwoods recorded. There, now its a bar question.

RV cleared the site, along with adding drainage and some pipes and paving. BIA changed up the scope, which increased the costs. BIA refused to pay and RV filed a mechanic’s lien. I know what you’re thinking. You’re thinking what I’m thinking. Mechanic’s lien? Anyhow, the mechanics lien was put into place before the Haselwoods recorded.

Side note: Really? Throw this in after you tell us the Haselwoods recorded? What kind of bar question is this? How about we just list things chronologically. “RV delivered equipment to the site. Due to non-payment by BIA, RV filed a mechanics lien, after which the Haselwoods recorded their security interest.” Maybe? But, as my high school french teacher used to say, “Let us get back to our sheep.”

The Haselwoods, of course, say that the land is public and not subject to a lien. They are right. BIA only owned the improvements, and RCW 60.04.061 (lien priority statute) only applies to things that you, you know, actually own yourself. In addition, you can’t have a mechanic’s lien on public land:

Washington courts have repeatedly held since 1931 public property cannot be subject to a mechanic’s lien. Hall & Olswang v. Aetna Cas. & Sur. Co., 161 Wash. 38, 47, 296 P. 162 (1931); see Hewson Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 828-29, 685 P.2d 1062 (1984); 3A Indus., Inc. v. Turner Constr. Co., 71 Wn. App. 407, 411, 869 P.2d 65 (1993). RV has put forth no compelling reason to abandon this well-established principle, so we decline to do so. Since the underlying real property here is public land owned by the City, it is not subject to a lien.

However, RV does take priority over the Haselwoods as to improvements on the land.

Now here’s the funny part. The Haselwoods were the appellants. The court affirmed the court of appeals in its entirety (the Haselwoods were trying to say that RV didn’t have priority in improvements…a pretty weak argument). RV would thus be entitled to RAP 18.1 attorneys fees.

That is, if they would have requested them in their opening brief. Ooops.

The dissent would hold that, since the mechanics lien applies to parcels of land, and the deed of trust said that the improvements would remain the personal property of BIA for the duration of the underlying agreement between BIA and the Haselwoods, that RV doesn’t fall within the mechanic’s lien statute. My only problem with that analysis, RV was never a party to the agreement between BIA and the Haselswoods, and the improvements should carry an objective standard.

WA Legal Roundup – Washington Supreme Court

April 30, 2009

State v. Powell

Despite what you read below, I assure you, the objection was preserved (don’t believe me? check out the end).

Powell was charged with breaking into his girlfriend’s home. The trial court allowed evidence that he had ingested meth to show his mental state under 404(b). The court of appeals reversed. Unfortunately, Powell’s counsel didn’t object to the testimony, and later only objected to questions of witness credibility.

Defense counsel objected to the victims testimony of drugs:

I don’t want the word drug used anywhere in this trial.  It’s not a trial about drugs and I’d prefer — my problem is you say methamphetamines and drugs, he’s going to jail. I don’t want that to happen. I — it’s not a trial about drugs. I want to keep that out in particular.

However, defense counsel acquiesced regarding a witnesses testimony of drug use:

And this Greg guy, I guess, can bring out that testimony. If in fact he was doing drugs with the Defendant the night before, he can bring . . . that stuff out, I imagine.  But the things that Greg said was he was — he told me he was going to get his son.

The guilty verdict was affirmed (and the court of appeals reversed). The concurrence (of 3) felt it was error to admit it under 404(b), but that error was harmless:

Rather, at the beginning of the colloquy over the admission of ER 404(b) evidence Powell’s counsel plainly objected to the admission of any drug evidence based on its potential for prejudice.

The dissent (of 2) skirted around any discussion of harmless error, instead focusing on the preservation of the objection and on a lack of expert testimony that, though amphetamine was ingested, it had any affect on state of mind.

And if you’re keeping track…this means the objection was found to have been preserved (5 votes preserved to 4 votes not preserved).


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