Volume 60 — Washington Appellate Reports

<bold>[1] Criminal Law — Witnesses — Impeachment — Bias or Interest —</bold> <bold>Related Civil Action — Identifying Civil Attorney.</bold> By prohibiting a criminal defendant from discussing the status of an attorney present in the courtroom as the victim's attorney in a contemplated civil suit, a trial court has not prevented the defendant from cross examining the witness as to matters tending to establish bias or prejudice as guaranteed by the Sixth Amendment. <bold>[2] Evidence — Hearsay — Excited Utterances — Spontaneity —</bold> <bold>Continuing Effect of Event.</bold> A statement relating to a startling event or condition is admissible under the ER 803(a)(2) exception to the hearsay rule if it was made during the time that the declarant was under the stress of the excitement caused by the startling event, so long as under the circumstances the possibility that the statement was the result of deliberation can be discounted. The period during which the declarant is under the stress of excitement can continue for a number of hours. <bold>[3] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Harmless Error — Discretion of Court.</bold> Whether improper prosecutorial argument necessitates a mistrial is a decision within the trial court's discretion.<page_number>Page 290</page_number> <bold>[4] Criminal Law — Trial — Misconduct of Prosecutor — Argument —</bold> <bold>Harmless Error — Effect on Jury.</bold> A criminal defendant seeking a mistrial based on improper prosecutorial argument has the burden of showing that the prosecutor's remarks were improper and that a substantial likelihood exists that the misconduct affected the jury's verdict thereby depriving the defendant of a fair trial. <bold>[5] Criminal Law — Trial — Misconduct of Prosecutor — Waiver —</bold> <bold>Failure To Request Curative Instruction.</bold> Improper prosecutorial argument does not necessitate a mistrial if any prejudice could have been cured by an instruction that the defendant failed to request. <bold>[6] Trial — Instructions — Adherence by Jury — Presumption — In</bold> <bold>General.</bold> Jurors are presumed to follow the trial court's instructions.

<bold>[1] Juveniles — Juvenile Justice — Findings and Conclusions —</bold> <bold>Failure To Enter — Prejudice.</bold> A trial court's failure to enter written findings of fact and conclusions of law in violation of JuCR 7.11(d), which requires the State to submit findings and conclusions within 21 days after receipt of a juvenile offender's notice of appeal, requires that the prosecution be dismissed if the juvenile would be prejudiced by a remand for entry of findings and conclusions. Prejudice can be based on (1) a continuation of the juvenile's confinement that would result from a delay in the proceedings and (2) the appearance of unfairness resulting from allowing findings to be entered after the issues have already been framed in the juvenile's appellate brief.

<bold>[1] Wills — Nonintervention Will — Jurisdiction — Source.</bold> A superior court's jurisdiction in a nonintervention probate proceeding is wholly a matter of statute. <bold>[2] Executors and Administrators — Fees and Expenses — Judicial</bold> <bold>Review — Nonintervention Will.</bold> After the personal representative of a nonintervention probate has filed a declaration of completion, the superior court, upon petition of an heir, devisee, or legatee, retains authority under RCW <cross_reference>11.68.110</cross_reference> to reassert jurisdiction to review the personal representative's fees and expenses. Jurisdiction does not depend on a showing of faithlessness in the estate administration. <bold>[3] Statutes — Construction — Amendment — Judicial Amendment.</bold> The clear and plain meaning of a statute will not be changed under the guise of judicial construction.<page_number>Page 631</page_number>

<bold>[1] Criminal Law — Informant — Identification — Disclosure —</bold> <bold>Necessity — Factors.</bold> Application of the privilege of keeping an informant's identity confidential depends on the facts of the particular case. Taking into consideration the crime charged, the possible defenses, the possible significance of the informant's testimony, and any other relevant factors, the trial court must balance the public interest in protecting the flow of information against the defendant's right to prepare a defense. <bold>[2] Criminal Law — Informant — Identification — Disclosure —</bold> <bold>Waiver of Privilege.</bold> The State's elicitation of testimony at trial regarding the substance of a communication received from a confidential informant does not necessarily waive the State's conditional privilege to withhold the informant's identity. In deciding a waiver issue, a court must consider whether knowledge of the informant's identity will serve a purpose material to the defense.<page_number>Page 688</page_number> <bold>[3] Criminal Law — Trial — Taking Case From Jury — Sufficiency</bold> <bold>of Evidence — In General.</bold> Evidence is sufficient to convict a criminal defendant if any rational trier of fact, after accepting the truth of the State's evidence and all the reasonable inferences therefrom, could have found that the essential elements of the crime were proved beyond a reasonable doubt. <bold>[4] Trial — Reopening for Additional Evidence — Discretion of</bold> <bold>Court.</bold> A trial court's decision on a motion to reopen a proceeding for the purpose of introducing additional evidence is reviewed under the abuse of discretion standard. <bold>[5] Courts — Judicial Discretion — Abuse — What Constitutes.</bold> An abuse of discretion occurs only if the court exercises its discretion on untenable grounds or for untenable reasons.

<bold>[1] Statutes — Construction — Unambiguous Language — In</bold> <bold>General.</bold> Unambiguous statutory language is not subject to judicial construction. <bold>[2] Statutes — Construction — Meaning of Words — "Shall" — In</bold> <bold>General.</bold> The word "shall" in a statute has a mandatory meaning. <bold>[3] Statutes — Construction — Omitted Language.</bold> A court does not have discretion to supplement a statute with language that it believes the Legislature may have omitted unintentionally. <bold>[4] Limitation of Actions — Partnership — Accounting —</bold> <bold>Limitation Period — Accrual of Cause.</bold> Absent an agreement to the contrary, under RCW 25.04.430 and <cross_reference>4.16.040</cross_reference> an action for a partnership accounting must be commenced within 6 years of the dissolution of the partnership. <bold>[5] Limitation of Actions — Partnership — Accounting —</bold> <bold>Limitation Period — Statutory Exception.</bold> RCW 25.04.220(4), which gives a partner a right to an accounting whenever the circumstances render it just and reasonable, does not authorize an accounting after the applicable limitation period has run. <bold>[6] Appeal — Findings of Fact — Review — In General.</bold> Appellate review of findings of fact is limited to determining whether substantial evidence supports the findings and whether the findings support the conclusions of law.<page_number>Page 752</page_number> <bold>[7] Limitation of Actions — Waiver — Consideration — Specific</bold> <bold>Period — Necessity.</bold> An agreement to waive a statutory limitation period must be supported by consideration and must be for a definite time. <bold>[8] Appeal — Findings of Fact — Absence of Finding — Effect.</bold> The absence of a finding of fact as to a particular issue is presumptively a negative finding against the party who had the burden of proving the issue. <bold>[9] Waiver — Implied Waiver — Elements.</bold> An implied waiver requires unequivocal conduct evincing an intent to relinquish a known right, advantage, or benefit. <bold>[10] Partnership — Accounting — Counterclaim — Waiver of Statute</bold> <bold>of Limitation Defense.</bold> By filing a counterclaim for a partnership accounting, a defendant does not waive the right to assert a statute of limitation defense.