State v. Jordan

Judgment reversed and remanded for a retrial.

Ringold JJ., concur. Durham, January 13359-4-I. Division One.

[No. 1985.] Respondent, Washington, State of v. Leland Appellant. Jordan, Alfred Thoenig Raymond E. Lobsenz of Wash- James H. and appellant. ington Appellate Association, for Defender Attorney, Maleng, Prosecuting Katharine B. and Norm respondent. Deputy, Wilcox, for appeals his con- A. Jordan A.C.J.—Leland Scholfield, robbery attempted in first for one count viction robbery degree, degree all in the first counts of and three deadly weapon was also a firearm. that with a while armed (1) sup- failing alleges in erred the trial court He that pretrial press him at a made of identifications witness (2) concerning excluding lineup, two counts evidence (3) robbery degree trial, before were dismissed first expert testimony witness, excluding of a defense represent in refus- refusing himself, and him to to allow his car. found a search of suppress gun during a ing

Facts in early in Seattle A of armed robberies occurred rash someone July p.m., July approximately 1982. On he to use a stopped to rob James Bernier when attempted later, robbed July A hours someone cash machine. few Carlson, and Mark Francis at same Jeffrey Lori Steele Dineen was day, July Lloyd On the next cash machine. July at a station. On at about working gas robbed while was robbed. On Kentucky Fried Chicken restaurant p.m., Kentucky Fried Chicken July another evening was robbed. restaurant Seattle Officers Su Department Seattle Police On two stating received a radio broadcast and Kossian woman, beige a 1972 driving black men and one white Cadillac, number IFJ plate license Washington brown a wallet that had the theft of regarding were wanted spotted stopped The officers occurred minutes earlier. was in the front Lori Wiseman driving, the car. Jordan was As Officer seat, Hunter was the backseat. and Donald car, his he noticed Hunter remove approached the Kossian the floor. bag underneath a blue tote on quickly hands from and Hunter removed from the car occupants All three were Officer Kossian searched the were handcuffed. and Jordan the stolen of the car and found passenger compartment knife, purses, a three and a bag, under the blue tote wallet by a which was later identified pistol, distinctive silver very similar to the one being of witnesses at trial as number used in the rash of robberies. 1982, 14, yet was not on Jordan

When arrested robberies; eventually released. he was the armed suspect August on A for Jordan's arrest was issued warrant however, Spokane August arrested on and he was 1982. Nine wit-

A was held on 1982. lineup August pretrial Four lineup. five robberies attended the nesses from the Bernier, Carlson, and Vanetta Dineen identified Jordan: Kentucky Fried Chicken restau- Willis, employee an July 7. rant robbed on lineup to identifications suppress

Jordan moved by lineup made in-court identifications any subsequent 19 and were held on November Hearings witnesses. Ainsworth, attorney Seattle-King Janet а staff 1982. Defender, testified she had been County Public conducted the Seattle Police lineups to cover assigned She testified that her on Department August the instructions listening given included responsibilities witnesses, selected examining people partici- to the lineup, comparing suspect in the with the other pate selected, participants making suggestions to enhance the lineup procedure, objecting suggestive fairness of that she had not allowed to procedures. She testified been preparation stage lineup cover the witness of the held that examination, testified day. On cross she witness had taken about 10 minutes and that she preparation stage the rest of the and did not lineup procedure had observed objectionably recall anything suggestive.

Sergeant Charles Scheuffele testified that he had con- lineup ducted the 1982. He testified that he August attorney had excluded from the witness preparation and that this was his normal stage procedure practice. why normally attorneys, When asked he excluded answered, he "No Scheuffele particular Sergeant reason." August testified that on he read standard instruc- written and made these tions to the witnesses from a form additional comments: they

I case that would not be told the witnesses this if they pick; criticized send the did not make a that we would they inadvertently if jail picked man to

wrong man, in the only that this was not the evidence wrong cаse, very they I them to do the best but that wished for important That it matter. And that was could. additional I them. gave instruction Sergeant She testified that Vanetta Willis also testified. that "he wouldn't actu- Scheuffele had told the witnesses if anybody you you pick if did anyone jail ally send him She also testified or not." pick whether to weren't sure that: bring that it would have said he would wouldn't —if [I]t I I think somebody, that don't upon punishment what —was so hard to anyone. It was picked have

would pick I or not I know whether should I didn't pick, because him, but wouldn't just a lot like it looked because —I anyway. him have picked somebody. pick I I had to thought I because picked had examination, testified that she Ms. Willis On cross anyone who had not chosen with two other witnesses talked had cast doubt on that these discussions at the she point, At one picked right person. had whether she someone, and, had felt she had to choose testified that she that she had not been testimony, in her she stated later She testified: pressured. I pick. I had to make a I I felt that just don't know. all, I felt pick have to but you that didn't

understood something there was pick I had to because that was —there really looked really him that about something —that him. picked I I went on and like him and guess just a lot that suppress, stating motion to The court denied the reasonable evidence persuasive it had not heard suggested procedures improperly probability Ms. Willis' The court stated that of Jordan. identification ways, couple оf different construed testimony could be knew that of it was that she it felt that the sum but that felt drawn to select pick anyone but she did not have had who person he looked most like Jordan because her. robbed in limine to moved 29, 1983, defense counsel March

On in the warrantless had been seized gun suppress motion was denied. car. This search of Jordan's in limine to moved 4, 1983, defense counsel April On Loftus, a pro- Dr. Elizabeth testimony from expert admit Washington. University at the psychology fessor of tes- Dr. Loftus would whether asked defense counsel court eyewitness reliability the of regarding ternas tify general any of particularity concerning or identifications that her testi- Defense counsel ‍​​​​‌​‌​‌‌‌‌​​​‌​​‌‌​‌​‌‌‌​​​‌​‌​​‌​​​​‌‌​​‌​‌​​‍stated witnesses. the State's denied the tеrms. court mony general would be motion. 1983, in limine 4, State moved to April on the

Also robbery the two counts of exclude mention of fact had been with- first Jordan dismissed degree against the argued the State. Jordan that the evidence prejudice by out the pretrial five witnesses to was relevant because him as the committing misidentified two robberies. had motion to exclude the evidence. granted The court the charges him, filed initially against Soon after the State for requested appointed and received counsel his Jordan however, 22,1982, requested September defense. On Jordan himself, him to permitting represent and received an order Jor- appointed only with his counsel as adviser. acting legal advisеr represented legal pretrial dan himself with a at the 19, 22, on 1982. On hearings November 1982 and November 20, 22, 1982, upon December 1982 and December Jordan's were entered Jordan's adviser request, allowing legal orders Jor- substituting appointed to withdraw and new counsel. appointed pre- new counsel him represented dan's at 29, 4, hearings April Jury trial March 1983. on 4, April took on the of 1983 and place selection afternoon 5, 1983 the first for morning April of witness April 5, was On the called on afternoon April 6, requested be allowed morning Jordan denied. request himself. This represent robbery attempted July In to the regard Bernier at trial and testified that James identified Jordan at pretrial lineup. he had identified Jordan robbery, Jeffrey Carlson July In rеgard to identi- trial that he had Jordan at and testified identified Fran- Lori Steele and Mark pretrial lineup. him at the fied they testified that had identified Jordan trial and cis also lineup. photograph him trial from a identified before robbery, Lloyd Dineen July In to the regard identified Jordan at trial and testified that he had identi- pretrial fied Jordan at the lineup.

In to the regard July robbery, Vanetta Willis identified Jordan at trial and testified that she had identi- Phelan, fied him at lineup. Cecilia manager restaurant, Kentucky Fried Chicken that she had testified trial, identified Jordan from a before photographic montage but could not him at trial. identify regard robbery, four witnesses positively Jordan, testified. Two witnesses identified one witness him tentatively identified and one witness could not make an identification.

The jury guilty attempted robbery found Jordan of the robberies, robbery and all of the except other the commit- ted on 1982. Lineup

Pretrial Identifications Jordan contends that the trial erred in failing court to suppress his pretrial lineup identifications. He contends that the attorney exclusion of his from the 10-minute wit- ness preparation period lineup the preceding violated his Sixth Amendment v. right to counsel under United States Wade, 388 U.S. 18 L. Ed. 2d 87 Ct. S. v. California, and Gilbert 18 L. Ed. 2d (1967). 1178, 87 S. Ct. 1951 He argues though even counsel present was at the actual and lineup observed no objectionable procedures, Sergeant Scheuffele's embellish- ment of the standard written instructions him prejudiced because it the encouraged witnesses to He the guess. cites testimony of Ms. Willis. Wade,

In States United the supra, Court held that a post-indictment lineup is a critical of a stage pro- criminal ceeding at which an accused is the guaranteed right counsel under the Sixth Amendment. The Court held that grave potential there is for to an accused in the prejudice pretried lineup presence necessary and that the of counsel is to assure that the accused can any reconstruct at trial unfairness that occurred thereby at the and mean- Wade, him. at against the witnesses cross-examine

ingfully nor that neither witnesses emphasized 237. The Court apt prej- be alert for conditions lineup participants were were, if that, they even it would the accused and udicial to to the accused because neither probably be of little benefit likely were to be schooled lineup participants nor witnesses Wade, at influences. suggestive in the detection did not consider whether coun The Court Wade of the other any stage lineup proceeding required sel between the accused physical confrontation than the actual court, however, has held the This witnesses. to a Amendment to counsel does not extend right Sixth police. interview between witnesses post-lineup Favro, App. review State v. Wn. denied, denied, (1971), cert. 80 Wn.2d 1001 U.S. Kimball, (1972); App. Wn. P.2d Favro, the court considered whether identifi presence attor сation of the defendant outside his ney, lineup, right 15 minutes after violated remedy The court held that for miscon counsel. assisting duct the witness the identifica improperly " for tion cross examination at trial and that basis [t]he requirement presence presence of counsel is wit the accused when confronted the witness or Favro, at nesses." 314.1 prepara- a brief witness distinguish

We find no reason held an interview between lineup before a from stage tion Any a police lineup. allegedly and the after the witnesses every the issue has held circuit that has considered 1We note that federal beyond physical right extend the actual confrontation to counsel does not v. post-lineup interview. Hallmark witnesses between the accused and the White, (10th Cartwright, v. 584, 1984); United States F.2d 617 F.2d 585 Cir. 742 (5th Banks, 1980) 545, v. 1131, (5th United States (citing F.2d 485 548 1135 Cir. denied, Bierey, (1974)); v. 1973), F.2d United States 588 cert. U.S. 987 416 Cir. denied, Tolli (8th 1978), (1979); States v. United 620, cert. 440 U.S. 927 624 Cir. Parker, 1217, (2d 1978); ver, 724, 1223 United States 549 F.2d 727 Cir. 569 F.2d States, denied, (citing Doss v. United (9th Cir.), cert. U.S. 971 Wilcox, (4th 364, (9th 1970)); 601, F.2d United States Cir. F.2d 603-04 denied, 1974), cert. Cir. improper verbal suggestions made at prepara- the witness tion stage been, could were, have recalled the wit- nesses on cross examination at trial. We hold that Jordan's Sixth Amendment right to counsel was not violated.2

Alleged Misidentification Evidence Jordan contends that the trial court erred excluding evidence that a lineup number of witnesses identified him as committing Seattle, two armed robberies July one on 1982 and July 1982, when, fact, another on he was in Spokane.3

On October the State filed a second amended information charging Jordan not only with the one count of attempted first degree robbery and four counts of first degree robbery tried, eventually but also with two addi- tional counts of first degree robbery. One count charged Jordan with an committing robbery armed July on and the other count him charged committing armed robbery with an accomplice July on 1982. The State voluntarily dismissed these counts without prejudice after Jordan presented copies of records Spokane from a hospital showing that he had been a patient on July 1982 and July 1982, and that he had checked into the hospital on two occasions for approximately hour each July 31, on 1982. Although the State vоluntarily counts, dismissed the it was not convinced that Jordan could not have traveled back and forth between the two cities. The trial court ruled the evidence of alleged misidentification was not 2Although right violated, we hold that to counsel was not we do not wish provided why condone the conduct involved. The State has no reason counsel preparation stage pretrial should be excluded from the lineup. witness of a appeal 3Jordan contended at trial and contends that five witnesses allegedly However, misidentified him. the exact number cannot be determined Department from the record. Seattle Police Detective Vanderlaan testified that 33 lineup, witnesses observed the thаt 11 witnesses made identifications of three dif suspects, present ferent regarding and that of the 9 witnesses the five counts of robbery charged, Thus, 4 witnesses made identifications —all of Jordan. it is not many clear how suspects other seven witnesses who identified identified regarding July 31, Jordan the robberies on 1982 and indepen- he had no after Jordan conceded that admissible dent evidence that a "lookalike" robber existed. The court or, that the evidence either was not relevant even if ruled disrupt were, its it admission would the trial because two robbery additional counts of would effect have to be tried.

Jordan contends that the evidence of misidentifica highly tion should have been admitted because it was rele relevancy vant. ‍​​​​‌​‌​‌‌‌‌​​​‌​​‌‌​‌​‌‌‌​​​‌​‌​​‌​​​​‌‌​​‌​‌​​‍determination of the of evidence lies within the discretion of the trial court. State v. Schimmel pfennig, (1979). addition, 594 P.2d 442 balancing proba the trial court has wide discretion against potential prejudicial tive value of evidence its impact under Coe, ER State (1984). agree 684 P.2d 668 We that the evidence was either minimally probative not relevant or so relevant its substantially outweighed danger value was of con fusing misleading jury. the issues and If the trial court alleged had evidence, admitted the misidentification State would have had to be allowed to show that Jordan could Thus, have indeed committed the robberies. two robbery more counts would have been tried. We hold that excluding the trial court did not аbuse its discretion evidence.

Jordan next contends of misiden that the evidence identity disprove tification was admissible to under ER 404(b).4 court, Jordan did not raise this issue in the trial argued only however. He that the was relevant to evidence reliability testimony of the witnesses regarding charged. objection the counts An to the admis sion or exclusion of is insuffi evidence on relevance based 404(b). preserve appellate cient to ER review based (1982), App. Platz, 33 Wn. 404(b) provides: 4ER crimes, prove wrongs, "Evidence of other the char- or acts is not admissible to person may, conformity of a It acter order to show that he acted in therewith. however, proof motive, purposes, opportunity, be admissible for other such as intent, preparation, plan, identity, knowledge, or accident." absence mistake or denied, hold that Jordan 99 Wn.2d 1012 We review appeal. raise issue for first time on may not this the im- him from prohibiting next contends that Jordan the the witnesses with four identification peaching him vio- that other witnesses had misidentified evidence Sixth his Amendment to confrontation. right lated do not The evidence agree. alleged We misidentification reliability the of identification eyewitness concerned any It was relevant or bias of prejudice not to the general. cross- fully the State's witnesses Jordan particular. of the his right examined witnesses him. We hold that against of confrontation was not violated.

Finally, cor- Jordan contends if the triаl court that even evidence, rectly the the alleged excluded misidentification "opened of evidence State the door" to the admission this He by eliciting testimony the of Vanderlaan. Detective him that to argues refusing the trial court erred allow cross-examine Detective with the misidentifi- Vanderlaan cation evidence. testified we Vanderlaan

Again, agree. do Detective eye- three 11 suspects that different selected were therefore, identifications; jury witnesses who made never had been identified informed that defendant dismissed other cases or two regarding regarding did not door" "open regarding counts. prop- trial court misidentification and therefore the alleged Van- еrly excluded Jordan's cross examination of Detective theory. on this derlaan

Self-Representation refusing erred in trial court Jordan contends the court's argues him to himself. He represent allow self-representation absolute right refusal violated his United States Constitu- under the to the sixth amendment 10) (amendment the Wash- tion section and article if right that even his He also ington argues Constitution. began, trial after self-representation ceased to be absolute circum- under the trial its court abused discretion stances.

A criminal constitutionally defendant's protected absolute; right self-representation is not it must be Richardson, timely asserted. re 100 Wn.2d Fritz, State v. (citing App. Wn. 360-61, 365, (1978), A.L.R.3d review denied, (1979)); Garcia, see State v. 647, 655-56, (dictum). 600 P.2d 1010 Whеther a demand for self-representation made during trial should be granted or denied rests within the largely informed Richardson, discretion of the trial court. at 674 360-61). Fritz, at (citing Factors to be considered assess such a demand ing are:

the quality of counsel's representation of the defend- ant, counsel, prior defendant's proclivity to substitute

the reasons for the request, the length and stage of the proceedings, and the disruption delay or which might reasonably expected be to follow the granting of such a motion.

Fritz, at 363 (quoting People Windham, 121, 19 Cal. 3d 128-29, 1187, (1977)). P.2d 560 137 Cal. Rptr. 8

Jordan did not contend at trial and has not contended on that his appeal representation counsel's was in deficient fact, way. when asked by the judge why trial he now represent himself, wanted to Jordan replied that he was not dissatisfied with his counsel's representation. only His rea- for the request sons were that he felt that he had nothing to lose because of some of the court's and that his rulings "has been my witnesses", counsel approaching which was my "not conducive to best interests". After Jordan stated reasons, that, these trial confirmed judge from Jordan trial, had attorney, before Jordan first demanded an had himself, represent then demanded to again then had an attorney. demanded The trial then denied Jor- judge request. We hold that the trial its dan's court did abuse discretion under these circumstances.

Expert Testimony Witness Jordan contends that the trial court abused its discretion 542 Dr. Loftus on Elizabeth testimony excluding reliability identifica-

general eyewitness subject tion. of Dr. trial court's exclusion upheld

This court has prior on two testimony on identification eyewitness Loftus' 751, P.2d ‍​​​​‌​‌​‌‌‌‌​​​‌​​‌‌​‌​‌‌‌​​​‌​‌​​‌​​​​‌‌​​‌​‌​​‍App. State v. 1262 Barry, occasions. 25 Wn. (1980); Brown, App. State v. Wn.

(1977). per to also trial refusal upheld We have court's mit Dr. to hypothetical questions Loftus answer problems identifica specific regarding eyewitness address Cook, 863, review tion. State v. P.2d App. 31 Wn. (1982). denied, The Jordan issue raised in State v. We fol Barry, supra. addressed specifically low and hold the trial not abuse its Barry court did testimony of Dr. Loftus. excluding discretion Retroactivity contends that the trial court erred refusing Jordan found the warrantless search of the suppress gun during compartment of his car on 1982. He passenger 7 of argues that the search violated article section Constitution, citing Ringer, Washington Belton, L. 2d In New York v. Ed. held that when (1981), Supreme 101 S. Ct. 2860 Court of an to a lawful cus- occupant subjected automobile arrest, compartment todial automo- passenger may lawfully under incident bile be searched the search exception requirement of the Fourth arrest the warrant expressly upon relied Belton Amendment. trial court Jordan's held denying suppress hearing motion to at the 29, 1983. Ringer, supra, Washing- on March In State v. the ton Court refused to follow Belton and held that Supreme Constitution, under article section 7 of the Washington may only an officer search arrested and arresting persоn the that as a search person's the immediate control area within case, compartment In this the arrest. passenger incident within immediate the control of was not an area Kos- by Officer searched the car when it was occupants hearing suppression testified sian. Officer Kossian Hunter car, both Jordan that when he searched the car away from and were had been handcuffed told and had been from the car had been removed Wiseman violated that the search We hold on the sidewalk. to stand Ringer was Because Ringer. 7 under section article whether conviction, we must decide Jordan's decided after retroactively applied.5 be it should fac three retroactivity analysis, Under traditional a new consti to determine whether are to be balanced tors retroactively applied: rule should be tutional (b) standards, (a) by the new purpose to be served enforcement authorities by the reliance law the extent of (c) on the adminis- standards, and the effect on the old the new application a retroactive justice tration of standards. 1199, 87 L. Ed. 2d Denno, U.S.

Stovall v. —, 79 L. Stumes, — U.S. (1967); see Solem v. S. Ct. 1967 Gunter, (1984); In re 579, 104 S. Ct. 1338 Ed. 2d P.2d 1074 however, area, Supreme Amendment In the Fourth States v. approach. a new United adopted Court has L. 102 S. Ct. 2579 Johnson, Ed. 2d construing decision (1982), Court held that unless a existing clearly Amendment controlled Fourth retroactively to applied it is to be retroactivity precedent, final аt yet the conviction was not cases which all handed The Court Johnson decision was down. time the and deter- existing retroactivity precedents its reexamined controlling retroactivity analysis mined that traditional in which cases of cases: categories in three narrow differ- to new and precedents settled merely applied Court Court declared situations, cases which the ent factual "a clear break to be procedure a rule of criminal Ringer, State v. was valid under the search 5The State does not contend only Ringer (1983); should not be it contends Respondent, retroactively applied. at 37-44. Brief of See past", ruled that the trial in which the Court and cases punish authority the criminal convict or court lacked Johnson, at 548-51. in first instance. defendant category in of cases in described The Court Johnson procedure to be a rule of criminal which the Court declared past" as follows: "a clear break with subsequently general, a deci- read In sion to unless mental rule which the Court has not "sharp law," in the web of the work a break abrupt ruling funda- an and caused "such entirely new shift doctrine as to constitute replaced a one". Such break effect an older explicitly recognized only over- when a decision has been rules a practice cases, tice to which this Court has not disapproves past precedent a Court, or of this prior arguably this Court has sanctioned prac- widespread longstanding overturns a or spoken, but which authority body has court near-unanimous of lower expressly approved. omitted.) (Citations Johnson, at 551. Ringer, supra, abruptly from

In State v. the court shifted precedent Amend- on federal under the Fourth a reliance analysis the Wash- to an under article section 7 of ment ington page The court stated at 697: Constitution. immediately years following [State Michaels In the (1962)]

Michaels, this court Const, plethora interpreting disregarded art. cases rely began inter 1, 7 instead to on federal cases § Const, preting amend. 4. U.S. years that in the the decision court also stated from The States, 364, 11 L. 2d in Preston v. United Ed. supra, Belton, until New York v. Ct. 881 84 S. decided, neglected instead our own stаte constitution to focus

we Const, by protections provided U.S. amend. protections own return to the of our choose now to We interpret their and to them consistent constitution beginnings. common law Ringer, at 699. prior Ringer explicitly six also overruled

The court interpreted improperly section to article cases that had exception. to arrest incident the search expansion allow court stated: search scope had allowed courts Washington Const, 1, 7 to exceed art. exception to to arrest § incident precedent. or justification historical far early interpreta- to return to Choosing 694-95. Ringer, at article exception under incident to arrest of the search tions from 1923 cases decided overruling necessitated 1, 7 section of interpretation this that were inconsistent with 1960 until Ringer in that the decision 1, section 7. We hold article court the because past" "a clear break with constitutes 1, 7 of section analysis under article shifted to an abruptly prior of a number and overruled explicitly constitution our inci- of the search scope improperly interpreting cases 1, section 7. under article exception to arrest dent past" with the "a clear break A that constitutes decision effect. retroactive given will not be invariably" "almost See United Johnson, at 549. v. 457 U.S. States United 374, 95 n.5, L. Ed. 2d Peltier, 531, 547 45 States v. (collecting (1975) (Brennan, J., dissenting) S. Ct. 2313 cases). Johnson, the Court concluded: In unantic- rule was the new has found that the Court Once and third Stovall factors —reliance the second

ipated, and the old standards authorities on enforcement law a retroactive of justice the administration of effect on application compelled a virtually the new rule —have of nonretroactivity. of finding Rhoads, See State v.

Johnson, at 549-50. application retroactive (denying because Jones, 677 P.2d 131 trial courts and past" "a clear break with it constituted upon a relied Appeals justifiably had the Court of and decision). the sec- that We conclude in an earlier statement in nonretroactivity compel Stovall factors and third ond as this case well. more Belton, slightly was decided supra,

New York compartment passenger of the before the search year than this upon by relied expressly Belton was car. of Jordan's of ‍​​​​‌​‌​‌‌‌‌​​​‌​​‌‌​‌​‌‌‌​​​‌​‌​​‌​​​​‌‌​​‌​‌​​‍the search Appeals upholding Division of the Court in State v. car defendant's of the glove compartment (1982). Callahan 710, 644 P.2d 735 Callahan, App. Wn. car. search of Jordan's 2 months before the just was decided search did Callahan, held that the court also State v. upon expressly relying article section violate denied, U.S. 970, cert. Smith, Wn.2d Court held: (1977), Washington Supreme which to the amendment that the fourth apparent It 7 of and article section United States Constitution comparable State Constitution are Washington interpreta- comparable constitutional are to be given tion and effect. authorities law enforcement

Callahan, at 714. We hold and the Callahan Belton upon relied justifiably under precedent on federal numerous cases based prior inci- a search scope defining Amendment Fourth section exception under article dent to arrest rule application find that the retroactive We also on the disruptive effect Ringer would have a announced administration to doubt We have no reason justice. the use of part by convictions were obtained numerous The investi authority the of Belton. seized under evidence difficult retrial, these cases would be possible and of gation, Stumes, Ct. See, Solem v. 104 S. e.g., consuming. and time 251, 22 L. Stаtes, 244, 1345; Desist v. United 394 U.S. at (1969). v. that State 248, 89 S. Ct. 1030 We hold 2d Ed. retroactively applied.6 not to be Ringer is York, Payton recently very New 445 U.S. Supreme held that 6Our Court (1980) applied retroactively 639, 100 573, should not be L. Ed. 2d S. Ct. (1985). Sauve, 322, We In re 103 Wn.2d review. cases on collateral analysis supports in this case. our decision find that the court's retroactivity applied "traditional we have labeled in Sauve what The court Denno, U.S. analysis" set forth in Stovall three factors balanced the —it (1967). purpose of 293, 1199, held that the The court L. 2d 87 S. Ct. 1967 Ed. prospectivity" the rule Payton supports because "strongly rule announced in designed to enhance illegal police designed and was to deter action Sauue, process. The court also reliability fact-finding аt 328. integrity and to have expect authorities law enforcement unreasonable to that "it would be held Sauue, prior Payton bright to its announcement." line rule drawn foreseen the

5 47 affirmed. Judgment

Durham, J., concurs.

Ringold, respectfully J. with the (dissenting) disagree —I refusal apply of State v. majority's holding Ringer, (1983) 100 Wn.2d 674 P.2d 1240 judice. to the case sub The majority overemphasizes Instead, federal case law. we prior law, should consider state the effects retroactivity of justice, administration and the importance treating litigants fairly equally.

The majority correctly states that the retroactivity issue be analyzed should Johnson, under United States v. U.S. 73 L. (1982). Ed. 2d 102 S. Ct. 2579 Ringer may be considered as a 2" "category case because it breaks prior precedent. The step, however, next is not denial of the applicability Ringer, but careful consideration of the following factors:

(1) The purpose of the new rule and whether retroactive application of the rule would effectively serve that pur- pose; whether and to what extent law enforcement agencies, courts, including justifiably upon relied rule; preexisting the effect of retroactive applica- tion upon justice administration of . . . including availability of remedies to correct the deficiencies aimed by . . . new rule Brumley Ctr., v. Charles R. Denney Juvenile 77 Wn.2d (1970). See Denno, also Stovall v. 18 L. Ed. 2d 87 S. Ct. 1967 Ringer

Although may be a "break with precedent," sharpness of that break is blunted earlier cases stating that article section 7 of our protec- constitution more tive of individual than is the rights Fourth Amendment. at 329. purpose Ringer, of the rule announced in State v. (1983) illegal police P.2d 1240 also was to deter action and not to enhance the integrity reliability addition, fact-finding process. of the if it would be expect bright unreasonable to law enforcement authorities to have foreseen the Payton, certainly regarding Ringer, line rule drawn in it be would so which con- past." stituted "a clear break with the App. majority's Callahan, v. 31 Wn. State misplaced. The reliance on Simpson, State is 644 P.2d 735 part: 170, 177-78, stated Wn.2d provision language of our The of the search seizure Const, significantly constitution, 1, 7,§ art. differs state . . from fourth amendment. the framers reveals that Historiсal evidence

Washington search establish a intended to Constitution provi- provision varied the federal and seizure from . . . sion. particular interpreting precedent . . . language for this there is upon conferring a as a state constitution protection provided higher degree than of is defendant a Const, by from 1, § 7 art. differs federal constitution. clearly recognizes an in that it the Fourth Amendment privacy express right to with no limitations. individual's gives The court to find that article section went on standing charged with an offense to defendants automatic possession element, has in contradiction as an that standing Simpson, purposes.

for Amendment Fourth Simpson, analysis Michaels, and in (1962), which P.2d 989 limits the extent to Wn.2d state could have relied on our law enforcement officials acceptance Amendment of federal Fourth courts' automatic Additionally, Ringer as a itself classified its decision cases. interpretation article section return to the correct entirely Ringer, than new rule. at 699. rather process. balancing weigh in This is a factor application upon Another "the effect of retroactive factor is Brumley, justice In re ..." at 707. the administration (1985), Sauve, cited majority, is situation here not determinative because the presented here different than that in Sauve. We are far conviction, with a case still a collateral attack but pipeline appeal. Sauve, "the retroac- in the As nоted principle application will of a new constitutional tive appeal depend or collateral on whether the is on direct case Sauve, majority review." at 328. The concludes that inves- cases New and retrial of all the decided under York tigation Belton, U.S. L. Ed. 2d 101 S. Ct. 2860 be difficult and time I consuming." agree. "would however, not, here. presented Such the issue Jordan's in the of pipeline appeal. Granting case is still limited to retroactivity ‍​​​​‌​‌​‌‌‌‌​​​‌​​‌‌​‌​‌‌‌​​​‌​‌​​‌​​​​‌‌​​‌​‌​​‍appeal Ringer cases still when not put decided does an undue burden on the administra- processes, tive and judicial especially when considered in high light importance on Fourth placed Amendment rights, and the absence remedy of other for this viola- rights. tion of those Refusal grant retroactivity may even limited violate "

the judicial responsibility justice do 'to to each litigant on the merits of his own State v. Pam, case.'" 757, 659 Similarly P.2d situated defendants are not retroactivity treated alike when is denied. Allowing the decision apply to all cases still on direct appeal when the down, decision is "provides handed a of principle decision- making consonant with the all reasoning newly declared of constitutional rules criminal procedure should apply to all retrospectively yet convictions not final when Pam, the rule was established." at the Supreme As Johnson, pointed Court out in retroactivity should not be denied simply yet because rule had not been announced at the time of the rule defendant's arrest: was not either, announced Ringer's yet time of arrest it applied Johnson, to Ringer. at 541. Ringer

Because represents change precedent, full retroactivity retroactivity is not appropriate. Allowing cases still in the pipeline appeal rights of vindicates of yet those whose not final without convictions are undue disruption justice," without "administration unduly expectations of law disrupting the legitimate enforcement Balancing officers. the three factors leads to Ringer apply to those cases conclusion that should Ringer yet I reverse. would final was decided. when February 11, 1985. Reconsideration denied Supreme pending 1, 1985. Court Review January Division Two. 1985.] 6674-2-II. [No. Appellant, Terri Washington, Respondent. A. Wirth, Prosecuting Attorney, Danny G. Clem, and Kenneth C. Deputy, appellant. Bell, for

Case Details

Case Name: State v. Jordan

Court Name: Court of Appeals of Washington

Date Published: Jan 11, 1985

Citation: 694 P.2d 47

Docket Number: 13359-4-I

Court Abbreviation: Wash. Ct. App.