WA Legal Roundup
Two new opinions out of Division III:
Occasionally flub ups happen. For instance, I get my email notifying me of new Div. III opinions, and I see two separate and distinct opinions. I click on the first, and it is a dissent. I find it a little odd that there is JUST a dissent, because if that were the case you would have to assume that two Justices felt that this was entirely not worth writing about, the third thinking it was. For obvious reasons this never happens. Being the sleuth that I am, I decided to check the court's web site, where I found that there was in fact a majority opinion actually written by two people.
As for the case itself, it involves restoration of felon firearms rights. Here's the breakdown:
1) Sentenced for vehicular homicide according to a 1993 statute, which included a prohibition on possession of a firearm while under D.O.C. Supervision. Trial court order includes a prohibition from ever possessing firearms, exceeding the authority granted under the statute.
2) In 1996, the legislature made vehicular homicide a class A felony, which prohibits such a felon from ever possessing a firearm.
3) The court decides that the trial court exceeded its authority by imposing a firearms restriction beyond D.O.C. supervision.
This brings us to the present, the motion for reconsideration. The majority's argument is summed up within the first paragraph of its reasoning:
The legislature's 1994 and 1995 amendments to RCW 9.41.040 were not punitive; they were regulatory. They restricted gun ownership. Laws of 1994, 1st Spec. Sess., ch. 7, § 402 (making it illegal for persons convicted of vehicular homicide to possess firearms); Laws of 1995, ch. 129, § 16 (requiring eligible offenders to petition for restoration of right to possess firearms). The amendments merely altered the collateral consequences of Mr. Rivard's conviction. Schmidt, 143 Wn.2d at 676. And case law suggests that the legislature intended such amendments to be retroactive.
Now, being anti-gun generally, I am not entirely against the result. However, I do think the reasoning here is rather week, categorizing restriction of Second Amendment Rights as regulatory, rather than legislative in nature. The dissent, in what I think is the more persuasive argument here, argues that the underlying conviction was a class B felony, and that the legislature's later amendment of vehicular homicide to a class A felony was not retroactive.
This is one I can see going to the Washington Supreme Court.
The case is extremely simple. Bache was convicted of one count of indecent exposure and one count of communicating with a minor for immoral purposes. The State alleged that Bache had prior convictions for these same crimes, which elevates the charges to felony.
Unfortunately, the State presented no evidence of prior crimes and the jury was not instructed that prior crimes were an element that had to be proven:
In Oster, the court held that where the fact of prior convictions converts an offense from a gross misdemeanor to a felony, the prior convictions function as an element of the felony and must be proved beyond a reasonable doubt. Ultimately, the court in Oster affirmed the conviction. The court noted that all of the necessary elements for conviction must normally be stated in the elements instruction. But the trial court there used a special verdict form. So the jury instructions, taken as a whole, set forth all the elements of the crime charged, and they also afforded the defendant protection from unfair prejudice that might attend his prior criminal history.
Here, Mr. Bache requested a special verdict form but, along with that, he proposed that a second jury be impaneled to decide the specific elements of the predicate crimes. The court refused his request. Ultimately, the trial court's instructions did not require that the State prove these predicate crimes, nor did the verdict forms.
Also within the opinion, a great discussion on the excited utterance exception and how it need not necessarily be spontaneous of contemporaneous.