Seattle Attorneys Blog

Excited Utterances May Be Admissible in Washington Even If Partly Untrue

December 7, 2017 | by Blair & Kim, PLLC

Many people are aware of the general rule that hearsay is inadmissible. Washington criminal defense attorneys know that a court may admit hearsay evidence if it meets one of a number of exceptions to that general rule. A Washington appeals court recently reviewed a case involving the excited utterance exception to the hearsay rule.

The defendant’s girlfriend had been drinking during the evening of the incident. She left the home for a while after an argument, but she subsequently returned. About 45 minutes later, she called her 16-year-old daughter. According to the daughter, the woman was crying and hysterical and spoke at a high volume. The daughter testified she had trouble understanding her mother. The woman described an assault and told her daughter she had been shot.

The girl gave the phone to her father. The woman’s ex-husband testified that she was hysterical, crying, and very scared. She described an assault and told him the defendant had shot her. The ex-husband called the police.

Parallel Domestic Violence Protection Order and Criminal Proceedings in Washington

November 30, 2017 | by Blair & Kim, PLLC

It is not uncommon for a civil protection order case to occur at the same time as a criminal case. When the issues in the cases are similar or related, the defendant’s Fifth Amendment rights can be implicated. Washington civil protection order attorneys understand that a defendant is not automatically entitled to a continuance in the civil protection order proceeding, however. The court should balance the interests to determine whether the case should be continued, as done in a recent case.

The husband was charged with multiple counts of rape of a child, involving his wife’s daughter. The wife reported that her husband had tried to get her to lie in the criminal case, and he was arrested for tampering with a witness.

The wife filed for a domestic violence protection order (DVPO), stating she was afraid her husband would retaliate. The court issued a temporary protection order and notice of a hearing. The husband requested a continuance of the hearing due to the pending criminal matter.

Washington Supreme Court Rules on State Delay in Disclosing Toxicology Witness

November 22, 2017 | by Blair & Kim, PLLC

Washington DUI defense attorneys often have to fight vigorously to ensure they get information from the State. In DUI cases, the State sometimes fails to name the toxicologist who will testify until very close to the trial. In one particularly egregious case, the prosecution provided a list of potential witnesses and waited until the morning of the trial to identify the actual witness. We discussed this case following the Court of Appeals decision, and the Washington Supreme Court has recently reviewed it.

The defendant was charged with driving under the influence. Five months before the trial, the State disclosed a list of nine toxicologists, indicating one of them would testify. Two weeks before trial, the defendant filed a supplemental discovery request, seeking identification of the testifying witness. Three days before trial, the defendant moved to dismiss or suppress the testimony. On the day before the trial, the State narrowed the list to three names. It finally identified which toxicologist would testify on the morning of the trial.

The defendant moved to suppress the testimony based on the late disclosure. The trial court denied the motion, finding no actual prejudice to the defense. The court also noted that the practice of providing a list rather than disclosing a specific name was caused by underfunding of crime labs rather than mismanagement.

Right of First Refusal in Washington Family Law Matters

November 21, 2017 | by Blair & Kim, PLLC

Child care is often a contentious issue in Washington family law cases. A parent may object to the child care arrangements made by the other parent, not want a specific person to watch the child, or want the opportunity to take the child when the other parent is unavailable. Sometimes, a parenting plan addresses this issue by including a right of first refusal. The right of first refusal requires that the other parent be given the opportunity to care for the child when the parent with residential time is unavailable. A right of first refusal is generally only used when the parents have been cooperative and shown an ability to co-parent. As a recent case shows, the parenting plan should provide some parameters and details about how the right works.

The child in this case was born after a brief dating relationship between the mother and the father. The mother received no assistance from the father during her pregnancy or the first 15 months of the child’s life.

When a temporary parenting plan was entered in 2009, the court-appointed guardian ad litem (GAL) noted that some of the father’s behavior was consistent with that shown by perpetrators of domestic violence. The GAL noted there were no allegations of physical aggression toward the mother or child, but they expressed concern that the father’s behavior may have a negative effect on the child’s emotional well-being or even escalate to physical violence.

Independent Basis for Washington Officer Requesting I.D. for Suspicion of Violating Protection Order

October 27, 2017 | by Blair & Kim, PLLC

The Washington Constitution protects people from unlawful searches and seizures. Article 1, section 7 has been interpreted by Washington courts to prohibit police from requesting identification of a passenger unless there is an independent basis for the request. An independent basis exists if the officer can identify specific and articulable facts that, when taken with rational inferences, justify the request. Washington criminal defense attorneys know that an unlawful search or seizure can occur in any kind of case, including a violation of a protection order.

In a recent case, a Washington appeals court considered whether an officer had an independent basis to ask the identity of a passenger when the driver was protected by a no-contact order. The defendant’s arrest arose from an incident in which an officer stopped a vehicle for expired registration and failure to transfer title. A man got out of the vehicle before the officer approached. The officer learned that the driver of the vehicle had several warrants. He also learned she was the protected party in a domestic violence no-contact order. The officer determined the description of the restrained party matched the passenger who had gotten out of the vehicle. He found that the passenger was in the portable outdoor restroom of a nearby gas station. The door to the restroom indicated it was unlocked and unoccupied. He knocked and opened the door, finding the passenger inside.

The passenger gave the officer a name and date of birth that did not match the restrained party. They then returned to the patrol vehicle, where the officer saw pictures of the man bearing the name given and the restrained party. The officer determined that the passenger was the restrained party and arrested him for a violation of the no-contact order.

Commingled Assets in Washington Divorce Cases

October 20, 2017 | by Blair & Kim, PLLC

The court must distribute the assets in a divorce if the couple does not reach an agreement as to distribution. Certain property may be considered separate property. In Washington, an asset is separate property if it is either acquired before the marriage, acquired during the marriage by gift or inheritance, or acquired during the marriage with the traceable proceeds of separate property. If property is acquired during the marriage, it is presumed to be community property. Washington divorce attorneys know, however, that separate property may become community property in certain circumstances.

A Washington appeals court considered whether certain assets were separate or community property in a recent divorce case. The husband appealed the distribution of property.

Both parties had worked and begun funding retirement prior to their marriage. The husband had worked for the same employer for 20 years prior to the marriage, and he contributed to a 401(k) during that time. He continued to work for the company and contribute to the 401(k) for two years after the marriage. The company subsequently merged with another organization, and the husband lost his job.

Washington Statute of Limitations and Service

October 13, 2017 | by Blair & Kim, PLLC

Personal injury cases are subject to a statute of limitations, and if the injured person does not bring a lawsuit prior to its expiration, he or she will be time-barred from doing so. Washington car accident attorneys know that Washington law is a little more complicated than other states on this issue. In Washington, the lawsuit is deemed commenced at the earlier of filing the complaint or serving a defendant with a summons. Once one of these actions is achieved, the statute of limitations tolls for 90 days to allow the plaintiff to complete the other action. If a defendant is not served within 90 days from the filing of the complaint, the action is deemed not to have commenced for the purposes of tolling the statute of limitations. Likewise, if the plaintiff first served the defendant and does not file a complaint within 90 days, the lawsuit is deemed not to have commenced. RCW 4.16.170. Thus, in Washington, filing the complaint and serving a defendant are equally important in regard to the statute of limitations. Even if the plaintiff files the complaint within the applicable period, the case may still be time-barred if he or she does not achieve service within 90 days of filing the complaint.

A Washington appeals court recently considered whether a lawsuit had been timely commenced when the defendant argued the plaintiff had only served an improper defendant within the 90-day window. The plaintiff was involved in an automobile accident with the defendant driver. He filed a lawsuit against the defendant driver and the Washington company he alleged was the defendant driver’s employer. The plaintiff served the employer. He subsequently amended his complaint to add a Georgia company, which he also alleged to be the defendant driver’s employer.

The plaintiff attempted to serve the defendant driver by mail and through the Secretary of State, pursuant to the nonresident motorist statute. The defendant driver ultimately filed an answer, denying the paragraph that alleged the named entity was his employer. The defendant driver then filed a motion to dismiss, arguing the claim was barred by the statute of limitations because the plaintiff had failed to serve any proper defendant before the expiration of the three-year statute of limitations or within the 90-day tolling period after he filed his complaint. The defendant driver argued that his employer was actually an Indiana corporation that had never been named in the lawsuit or served.

Jury Access to Inadmissible Evidence Results in New Trial for Washington Criminal Defendant

October 6, 2017 | by Blair & Kim, PLLC

A jury must base its decision on the evidence before the court and may not consider evidence outside the record. While courts do their best to ensure that juries are properly instructed and not exposed to outside information, jurors still sometimes consider extrinsic information in robbery and other theft cases. When this happens, a Washington robbery defense attorney may seek a new trial for his or her client.

Such was the case recently, when a jury was exposed to a video that had not been admitted into evidence at trial. The defendant was charged with second-degree robbery of a restaurant. Police apprehended him at the end of an alley about five blocks away shortly after the robbery. There were shoe prints in the alley matching the defendant’s shoes. He had a roll of pennies on him and just a few dollars more than what had been taken. The robber’s shirt was found in a garbage can along the alley. The employee, however, did not think the defendant was the robber.

There were three videos from inside the store and another that captured the parking lot. The outside video also showed the robber walking out of the building in the general direction of the alley. All four videos were put onto a DVD admitted as a prosecution exhibit. However, just the videos inside the store were admitted at trial. The prosecution did not have a witness to establish a foundation for the exterior video, so it was withdrawn after the defense objected. The existence of the exterior video came out at trial when the defense asked an officer about not having watched it.

Washington Parenting Plans and Substantial Changes in Circumstances

September 27, 2017 | by Blair & Kim, PLLC

The modification of a Washington parenting plan over the other parent’s objection can be difficult. In fact, there is a presumption against it. Washington child custody attorneys know that Washington courts have recognized that children have a strong interest in finality in their living arrangements. Courts will not disturb the residential arrangements in a parenting plan over a parent’s objection unless there has been a substantial change in circumstances, and the modification is in the child’s best interest. The court must deny a motion to modify unless it finds adequate cause to hear the motion.

A recent case explored the issue of adequate cause. The father petitioned to modify the parenting plan. He and his former wife had two children together. In the parenting plan, the mother was designated as the residential parent, and the father was given residential time with the kids on alternating weekends, winter breaks, mid-winter breaks, and spring breaks. He was also given residential time during half of the holidays.

The parents cooperated on parenting after the divorce, spending holidays together. The mother began a relationship with another man in 2012, and the father remarried.

Washington Protection Order Violations and Burglary

September 20, 2017 | by Blair & Kim, PLLC

Washington defendants are entitled to a unanimous jury verdict. Washington criminal defense attorneys know, however, that this general rule can become complicated when there are multiple acts underlying the charges. If multiple acts could each form the basis of a charge, and the state presents evidence of each, either the state must elect which act is the basis of the charge, or the jury must be instructed on unanimity. If the multiple acts are all part of a continuing course of conduct, there is no requirement for an election or instruction. Additionally, multiple acts may be presented as alternative means of committing the crime. If there is sufficient evidence to support each means, express unanimity is not required. A Washington appeals court recently addressed these issues in a case in which a man was charged with residential burglary after allegedly violating a no-contact order and assaulting his wife.

The defendant was charged with three counts of felony violation of a court order, along with two assault charges, residential burglary, and third-degree malicious mischief. The charges stemmed from allegations that the defendant violated a no-contact order and assaulted his wife, sister, and mother. The defendant and his wife were separated, and she had obtained a no-contact order that prohibited him from coming within 1,000 feet of her or her home. The defendant had several misdemeanor convictions for violating the order.

The defendant’s wife testified that he came to her home twice in April 2015, but he left when she called the police. He came back in July 2015 and came in through the back door. She testified that he was intoxicated and called her names. She also testified that he kicked her, threw her on the couch, and struck her. The defendant’s parents and sister lived with his wife. The defendant started to leave when his sister told him she was calling the police. She grabbed his shirt to stop him, and he bit her hand until she kicked him. He pushed his mother to the ground and stepped on her chest as he left.