Category Archives: Domestic Violence

Washington Crime Report Released

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The Washington Association of Sheriffs and Police Chiefs (WASPC) just released its 2017 Crime in Washington Annual Report.

It was compiled from data submitted to the Washington State Uniform Crime Reporting Program of the WASPC by Washington State law enforcement agencies.

FACTS AT A GLANCE

  • In 2017, Crimes Against Persons showed an increase of 0.4% with 84,145 offenses reported; compared to 2016 offenses reported of 83,771.
  • In 2017, Crimes Against Property showed an decrease of 6.7% with 295,274 offenses reported; compared to 316,361 offenses reported in 2016.
  • In 2017, Crimes Against Society showed an increase of 5.9% with 32,011 offenses reported; compared to 30,230 offenses reported in 2016.
  • Group A offenses were cleared by arrest or exceptional means 25.6% of the time.
  • The crime rate (per 1,000 in population) for Group A offenses was 69.1.
  • The total arrest rate per 1,000 in population was 25.6.
  • Juveniles comprised of 6.9% of the total arrests.
  • Domestic Violence offenses made up 50.4% of all Crimes Against Persons.
  • A total of 25,400 persons were arrested for DUI, including 163 juveniles.
  • A total of 531 hate crime incidents were reported.
  • There were a total of 1,643 assaults on law enforcement officers and no officers killed in the line of duty.
  • Full-time law enforcement employees totaled 15,873; of these 11,078 were commissioned officers.
  • There were 11,986 arrests for drug abuse violations; of that number, 10.2% were persons under 18 years of age.
  • Possessing/concealing of marijuana constituted 16.7% of the total drug abuse incidents; the distributing/selling of marijuana accounted for 1.1% of incidents(type of criminal activity can be entered three times in each incident).
  • Possessing/concealing of heroin constituted 32.2% of the total drug abuse incidents; the distributing/selling of heroin accounted for 4.6% of incidents (type of criminal activity can be entered three times in each incident).
  • The weapon type of “Personal Weapons” (hands, fists or feet) was reported in 51,817 incidents; firearms were reported in 8,465 incidents (up to three weapons can be reported in each incident).
  • There were 6,212 sexual assault (forcible and non-forcible) incidents reported in 2017. There were a total of 6,212 victims in these incidents; with a total of 6,300 offenders.
  • There were a total of 54,294 domestic violence incidents reported; 12,023 of these incidents were Violations of Protection or No Contact Orders.

Overall, the data is very interesting.

Please contact my office if you, a friend or family member are charged with a crime. Consultations are free. I provide effective criminal defense for people charged with felonies and misdemeanors. It is extremely important to hire an attorney like myself who is willing to devote significant attention to the case. I say this because people convicted of a crime face more than just criminal penalties. They also face a potential lifelong social stigma, as well as diminished employment, housing and educational opportunities. I proudly represent clients in Skagit and Whatcom County, Washington.

 

Right to Impartial Jury

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In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second Degree Domestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals upheld Mr. Philips’ conviction.

The Court started by giving a substantial amount of background on the issue of jury selection. It said the Sixth and Fourteenth Amendments of the United States Constitution, and article 1, section 22, of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from  jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an experienced and proactive defense attorney is the first step toward gaining justice.

Violation of No-Contact Order & Defense of Property

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In State v. Yelovich, the WA Supreme Court held that a “Defense of Property” jury instruction is not available when there is a valid court order prohibiting the defendant from contacting the protected party.

BACKGROUND FACTS

Mr. Yelovich and Ms. De Armond dated for more than five years. At some point, and during all times relevant to this case, there was a valid no-contact order prohibiting Yelovich from contacting De Armond. The order forbids Yelovich from “coming near and from having any contact whatsoever, in person or through others, by phone, mail or any means, directly or indirectly” with De Armond. It also prohibited Yelovich from causing any physical harm or bodily injury to De Armond.

On the day in question, Yelovich parked his car in the driveway of his son’s house. He was moving boxes from the garage, and an approximately four-and-a-half-foot wood fence separated him and his car. After about an hour, Yelovich believed he saw someone through the fence, but he could not identify the person. When he went to his car, which had a broken passenger window, he saw that his cell phone and other personal belongings were missing. He saw De Armond walking down the street, and he testified at trial that he “knew then that she did it.”

Yelovich was aware that he was prohibited from contacting De Armond, but he thought the police would not arrive in time to recover his phone. Although he admitted it “was an irrational, radical move,” he chased after her in his car. When he found her a few blocks later, he got out of his car and attempted to take her purse because he believed she had put his phone in it.  A struggle ensued, and De Armond testified that he was “bouncing her off the ground.” Her testimony was corroborated by a Good Samaritan who intervened. He testified that he “saw a man straddling a female. I saw him striking her,” and “he was lifting her up off the ground and slamming her on the ground.”

Both the fire department and police responded to the incident. De Armond was treated for minor injuries, including redness, bruising, and a small laceration. The responding police officer who interviewed De Armond noted she seemed intoxicated and “she had a really hard time keeping herself together.”

The State charged Yelovich with one count of felony violation of a no-contact order predicated on his assault of De Armond and one count of Bail Jumping. At trial, he argued that he was entitled to a jury instruction on defense of property because he was protecting his cell phone, which he believed De Armond had stolen.

For those who don’t know, a jury instruction is a guideline given by the judge to the jury about the law they will have to apply to the facts they have found to be true. The purpose of the instructions is to help the jury arrive at a verdict that follows the law of that jurisdiction. AT any rate, the judge refused, reasoning that Yelovich “was acting offensively, not defensively to protect property.”

The jury convicted Yelovich as charged. He appealed only his felony violation of the no-contact order on the basis that he was improperly denied a jury instruction. The Court of Appeals affirmed the trial court, and Yelovich appealed.

ISSUE

Whether the trial court improperly refuse to instruct the jury on the affirmative defense of defense of property.

COURT’S ANALYSIS & CONCLUSIONS

The SUpreme Court reasoned that under statute, Violation of a No-Contact Order is usually a gross misdemeanor, but it is elevated to a Class C felony if the restrained party assaults the protected party during the violation. Therefore, assault is an essential element of the crime of felony violation of a no-contact order, and the State must prove it occurred beyond a reasonable doubt.

Yelovich relies on Washington’s Self-Defense and Defense of Property Statute to claim that he may use defense of property as an affirmative defense. The statute states:

“The use, attempt, or offer to use force upon or toward the person of another is not unlawful . . . whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.”

Yelovich argues the statute provides “a valid affirmative defense whenever assault is charged or whenever assault is an element of the charged crime,” and therefore it may be used when the charged crime is felony violation of a no-contact order. However, Yelovich’s position ignores the critical role of the underlying no-contact order in this case.

The Court further reasoned that the standard language included in the order warned Yelovich that as the restrained party, he has the sole responsibility to avoid or refrain from violating the order’s provisions.

“By the terms of the order, Yelovich has no power to engage in self-help if doing so brings him into contact with De Armond. This bright line rule ensures that victims are not left wondering whether conduct prohibited by the no-contact order might later be deemed lawful. It therefore furthers the legislature’s goal to provide victims of domestic violence the maximum protection from abuse.”

The Court concluded that, in sum, Yelovich had sole responsibility for not violating the terms of a valid court order that forbids him from contacting De Armond, and so he had no authority to chase De Armond when he believed she had taken his phone. Accordingly, Yelovich was not entitled to a jury instruction on defense of property because his conduct violated the court order.

My opinion? Although the statute is very clear that mutual violations of the order and Defense of Property is not a defense, other defenses do exist. Please contact my office if you, a friend or family member face criminal charges for violating a no-contact order.

Felony Harassment (DV)

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In State v. Horn, the WA Court of Appeals held that the trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of a domestic violence offense did not violate the defendant’s Sixth Amendment rights.

BACKGROUND FACTS

Horn and Ms. Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

In January 2015, Horn and Oubre were at Oubre’s residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have “an episode like this before.” Horn grabbed Oubre’s night shirt and ripped it open, hitting her on the chest in the process.

Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn’s home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police.

On August 7, 2015, Horn and Oubre were together at her home. Oubre was on her cell phone playing a game. Horn grew aggressive, believing that Oubre was texting an ex-boyfriend. A violent exchange occurred between Horn and Oubre. Horn straddled Oubre on the bed, pointed a gun at himself and Oubre, and gave numerous threats against her life.

Later, Oubre went to the hospital. She spoke with the police while at the hospital, and Horn was then arrested. Among other offenses, Horn was charged with domestic violence felony harassment based on the August incident. Horn posted bail on August 20, 2015.

Oubre and Horn got engaged on September 5 and took a trip together.

Horn was later charged with violating a no-contact order, to which he pled guilty. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre’s car.

Before trial on the felony harassment charge, the State sought to introduce evidence of
the January 2015 incident under ER 404(b) to show that Horn’s threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out.

Before trial, both the State and defense counsel argued over whether the evidence of the January 2015 incident should be admitted. The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn’s engagement and trip after August 2015. In the defense’s view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

The State opposed the admission of evidence of their engagement and trip because “it triggers a bunch of things,” including Horn’s later violation of a no-contact order where he was naked and jumping on top of Oubre’s vehicle. The State also did not believe the evidence was relevant to whether Oubre was fearful in August 2015.

The jury found Horn guilty of two counts of fourth degree assault, unlawful possession of
a firearm, and domestic violence felony harassment. Horn appealed. He argued that his Sixth Amendment right to present his defense was violated because the trial court did not admit evidence of Oubre and Horn’s engagement and trip taken after the August 2015 incident.

COURT’S ANALYSIS & CONCLUSIONS

“We review a Sixth Amendment right to present a defense claim under a three-step test,” said the Court of Appeals. First, the evidence that a defendant desires to introduce must be of at least minimal relevance. A defendant only has a right to present evidence that is relevant. Second, if relevant, the burden shifts to the State to show that the relevant evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Third, the State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and relevant information can be withheld only if the State’s interest outweighs the defendant’s need.

The Court reasoned that to show a violation of the right to present a defense, the excluded evidence, that of Horn and Oubre’s engagement and trip, must first be of at least minimal relevance. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The threshold to admit relevant evidence is very low.

Impeachment evidence is relevant if: (1) it tends to cast doubt on the credibility of the person being impeached and (2) the credibility of the person being impeached is a fact of consequence to the action.

The court reasoned that here, Oubre’s subsequent engagement and trip with Horn thus would be relevant, if at all, to impeach her testimony that she feared Horn at the time he threatened to kill her.

“With the frightening nature of the threats and violence against Oubre on August 7 and the passage of nearly a month until their engagement, Oubre’s change of heart casts little doubt on her testimony that on August 7, in the face of repeated violence and death threats, she feared for her life.”

The court said that for these reasons, especially in combination with the cycles of violence and reconciliation in domestic violence relationahips, the evidence of Oubre’s engagement to and trip with Horn was not relevant.

“The trial court’s exclusion of that evidence was neither manifestly unreasonable, based on untenable grounds, nor based on untenable reasons,” said the Court of Appeals. “Thus, under the abuse of discretion standard, the exclusion of this evidence did not deprive Horn of his right to present a defense.” Furthermore, because Horn does not meet the first requirement of the three-step test, his claim that the trial court deprived him of the right to present a defense fails.

With that, the Court of Appeals ruled that Horn’s right to present a defense was not violated. Therefore, his convictions were affirmed.

Please contact my office if you, a friend or family member face domestic violence charges.

DV & Cohabitating Parties

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In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.

Unlawful Imprisonment Evidence

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In  State v. Scanlan, the WA Court of Appeals upheld the defendant’s conviction for Unlawful Imprisonment because there was evidence that  the victim told his doctor that he had been imprisoned in his home for two days against his will by the Defendant.

BACKGROUND

In 2013, Bagnell, an 82-year-old widower, was living independently in the Federal Way home that he had shared with his wife of more than 50 years. Sometime in 2013, Bagnell met Scanlan, a woman 30 years his junior. They quickly became friends and about two months later, Scanlan moved in with Bagnell.

On October 16, 2014, the Federal Way Police Department responded to Bagnell’s home after receiving a 911 hang-up call. The officers found Bagnell and Scanlan inside the home. Scanlan was uninjured, but Bagnell, who was dressed in a t-shirt and underwear, had wounds on his head, arms, and legs. After questioning Scanlan, the officers arrested her. As a result of the incident, a court order was issued prohibiting Scanlan from contacting Bagnell.

A few weeks later, on November 6, 2014, Bagnell’s adult children grew concerned after Bagnell missed a scheduled meeting with them. After trying and failing to reach him on his cell phone and home phone, Bagnell’s children went to Bagnell’s house to check on him.

When Bagnell’s children arrived at his house, they found it dark. Its blinds were
drawn and all of the interior and exterior lights were out. The children thought this was
odd and moved up to the front porch to try to see inside. From the porch they could see the glow of the television and shadowy movements. They rang the doorbell and
knocked but received no answer. Bagnell’s children were alarmed and opened the door
with an emergency key.

Inside, they found Bagnell’s home in disarray. Trails of blood ran across the carpet and up the stairs, gouges marked the walls, and broken household items and debris lay on the floor. A golf club leaned against a wall, and a hammer lay on a coffee table. A crowbar was on the dining room table, and a broken broom handle stood in a garbage bucket in the middle of the family room’s floor. Bagnell sat alone in a chair in the family room, dazed, bleeding from several wounds, and severely bruised such that “His face was black.” Bagnell at first appeared to be unconscious, but he began to respond to their attempts to rouse him as they called 911.

Roughly 15 minutes later, Federal Way Police Officer Brian Bassage arrived at Bagnell’s home. Just as Officer Bassage arrived, Scanlan was found hiding under a blanket in the front seat of a car in the garage. As Officer Bassage removed her from the car, Bagnell’s daughter yelled out at her that she had “just beat her father half to death, that there was blood everywhere.” Scanlan shouted back, “It’s not that bad.” At the police station, Scanlan claimed to be injured. The police took pictures, but did not detect any significant injuries. Scanlan did not receive medical treatment.

Bagnell was transported to the hospital where he was treated in the emergency room for his injuries which included: extensive bruising all over his body, four large open wounds on his legs, wounds on his arms, and fractures on both hands. Bagnell was treated in the emergency room by emergency room Nurse Catherine Gay and Dr. Robert Britt. Bagnell also met with social worker Jemina Skjonsby.

After treatment, but prior to his release, Bagnell met with Federal Way Police Department Detective Adrienne Purcella from about midnight to 1:00 a.m. Bagnell signed a form medical records waiver at 12:55 a.m.

Bagnell did not testify at trial. However, the trial court admitted statements that Bagnell made to medical providers in the emergency room, as well as subsequent statements made to his primary care physician and wound care medical team.

In November 2015, the State charged Scanlan with assault in the second degree (count 1), felony violation of a court order (count 2), unlawful imprisonment (count 3), and assault in the fourth degree (count 4). All counts contained a domestic violence allegation. The jury found Scanlan guilty of assault in the second degree, felony violation of a court order, and unlawful imprisonment.

Scanlon appealed her convictions She contends that, among other issues, there was insufficient evidence to support the charge of unlawful imprisonment.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals held there is sufficient evidence of unlawful imprisonment.

The Court reasoned that when reviewing a claim for the sufficiency of the evidence, it considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom. Finally, circumstantial evidence is as reliable as direct evidence. However, inferences based on circumstantial evidence must be reasonable and cannot be based on speculation.

In this case, the State charged Scanlan with unlawful imprisonment under RCW 9A.40.040 which states: “A person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” To prove restraint, the State had to prove that Scanlan restricted Bagnell’s movements (a) without consent and (b) without legal authority, in a manner which interfered substantially with his liberty. Restraint is without consent if it is accomplished by physical force, intimidation, or deception.

The Court reasoned that first, Bagnell told his physician Dr. Britt that he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will. Also the physician’s assistant testified that Bagnell told her that Scanlan locked him in a room: “He was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom and a hammer over multiple areas,” said the physician’s assistant, who also testified at trial.

Second, circumstantial evidence supports the inference that Scanlan used force or the threat of force to restrain Bagnell. Bagnell’s children found the front door locked, their father in a stupor, the house in disarray, and a broken broom, hammer, golf club, and crowbar. Bagnell’s children were also unable to contact their father by phone. Additionally, Bagnell’s cell phone was found broken, a battery was found to have been removed from a cordless phone in the home, and another phone was found to have no dial tone.

“Viewed in the light most favorable to the State, this is sufficient evidence of unlawful imprisonment.”

With that, the Court of Appeals affirmed Scanlan’s conviction for unlawful imprisonment.

Forced & Warrantless Entry

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In Bonivert v. City of Clarkston, the Ninth Circuit Court of Appeals held that police officers responding to a “physical domestic” call violated the Fourth Amendment by entering the locked house without a warrant after the suspect, who was the lone occupant of the home by the time the police arrived, refused repeated requests to come to the door. Under the facts of the case, the forced entry could not be upheld under consent, emergency doctrine or exigent circumstances.

BACKGROUND FACTS

This case starts with a domestic dispute call to the police from the home of Ryan Bonivert. During an evening gathering with friends, Bonivert reportedly argued with his girlfriend, Jessie Ausman, when she attempted to leave with the couple’s nine-month old daughter. By the time police arrived, the disturbance was over: Ausman, the baby, and the guests had safely departed the home, leaving Bonivert alone inside. At that point, there was no indication that Bonivert had a weapon or posed a danger to himself or others. Nor does the record suggest that Ausman intended to reenter the house or otherwise asked police to accompany her inside. When Bonivert failed to respond to repeated requests to come to the door, the officers decided they needed to enter the house. No attempt was made to obtain a search warrant.

Though Bonivert locked the door to his house and refused police entreaties to talk with them, the police broke a window to unlock and partially enter the back door. Even then, Bonivert tried to shut the door, albeit unsuccessfully. Although Ausman consented to the officers entering the house, Bonivert’s actions were express—stay out.

Nevertheless, the officers forced their way in, throwing Bonivert to the ground, and then drive-stunned him with a taser several times, handcuffed him, and arrested him. Bonivert was arrested for assaulting an officer, resisting arrest, and domestic violence assault in the fourth degree.

Bonivert brought civil rights claims under 42 U.S.C. § 1983 against the City, the County, Combs, Purcell, Gary Synder, and Joseph Synder, alleging warrantless entry and excessive force in violation of Bonivert’s constitutional rights. The district court granted summary judgment in favor of the defendants on the basis of qualified immunity.

For those who don’t know, qualified immunity protects a government official from lawsuits alleging that the official violated a plaintiff’s rights. It only allows suits where officials violated a “clearly established” statutory or constitutional right. When determining whether or not a right was “clearly established,” courts consider whether a hypothetical reasonable official would have known that the defendant’s conduct violated the plaintiff’s rights.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Ninth Circuit concluded that the warrantless entry into Bonivert’s home violated the Fourth Amendment as none of the lawful exceptions to the warrant requirement applied. The officers are not entitled to qualified immunity.

The Police Officers Were Not Entitled to Qualified Immunity.

The Court reasoned that police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the defendants’ conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged violation.

In other words, the question is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.

Fourth Amendment

The Court of Appeals explained that the Fourth Amendment protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.

“It has long been recognized that the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” reasoned the Court. “This special protection of the home as the center of the private lives of our people reflects an ardent belief in the ancient adage that a man’s house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.” Consequently, the Court reasoned it is a basic principle of Fourth Amendment law that warrantless searches of the home or the curtilage surrounding the home are presumptively unreasonable.

“Taken in the light most favorable to Bonivert,  . . . the facts demonstrate that the officers violated Bonivert’s constitutional right because no exception to the Fourth Amendment’s warrant requirement justified the officers’ entry into Bonivert’s home.”

Warrantless Entry: Officer are Not Entitled to Entry Under the “Consent” Exception.

The Court explained that although the consent exception ordinarily permits warrantless entry where officers have obtained consent to enter from a third party who has common authority over the premises, Georgia v. Randolph held that an occupant’s consent to a warrantless search of a residence is unreasonable as to a co-occupant who is physically present and objects to the search.

“Such is the situation here,” said the Court of Appeals. “Even though the officers secured
Ausman’s (his girlfriend’s) consent, Bonivert was physically present inside and expressly refused to permit the officers to enter on two different occasions.”

The court explained that Bonivert expressly refused entry when he locked the side door to his house. During the initial “knock and talk,” Combs and Purcell knocked and attempted to open the front and back doors to the house, but found them to be locked. As the officers circled the house to approach the side door, Bonivert realized it was unlocked and locked it as Combs was approaching. Combs heard the door lock and informed Purcell.

Bonivert also expressly refused entry when he attempted to close the back door on the officers after Combs broke in. Once the officers decided to enter the home by force, Combs used his flashlight to shatter a window pane in the back door, reached through the opening, and unlocked the door. At that point, Bonivert partially opened the door and confronted the officers, which prompted the officers to fire their tasers in dart mode. All parties agree that after the darts failed to make contact, Bonivert tried to shut the door, placing it between himself and the officers, but ultimately was prevented from doing so when Officer Combs rushed through with such force that he threw Bonivert to the other side of the room.

“Based on the foregoing, we hold that the officers are not entitled to qualified immunity under the consent exception to the Fourth Amendment’s warrant requirement. Simply put, a reasonable officer would have understood that no means no.”

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Emergency” Exception.

The Court reasoned that the emergency aid exception permits law enforcement officers to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  An entry pursuant to the emergency aid exception is reasonable under the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the circumstances, viewed objectively, justify the action. However, the police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests, because the emergency exception is narrow and rigorously guarded.

“Viewing the facts in the light most favorable to Bonivert, there were simply no circumstances pointing to an actual or imminent injury inside the home,” said the Court. By the time the officers arrived, both Ausman and the child were safely outside, surrounded by four other adults intent on protecting them from harm. During the entire time that the officers spoke to the witnesses, circled and attempted to enter the home from various points, and called on Deputies Gary and Joseph Snyder for backup, the house was silent. Ausman further assured the officers that there were no weapons in the house and that Bonivert did not pose a danger to himself. Consequently, the Court rejected arguments that an emergency existed which allowed warrantless entry into the house.

Warrantless Entry: Officers Are Not Entitled to Entry Under the “Exigent Circumstances” Exception.

The Court explained that the exigency exception permits warrantless entry where officers have both probable cause to believe that a crime has been or is being committed and a reasonable belief that their entry is necessary to prevent the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.

Here, the Court reasoned that Bonivert, who was inside his home when the alleged domestic assault occurred and remained there even after the officers broke into his back door, was never a “fleeing suspect.” The officers never articulated any other legitimate law enforcement justification for entry under the exigency exception.

The Lower Court Improperly Denied Bonivart’s Excessive Force Claims.

Taken in the light most favorable to Bonivert, the evidence reflects that Bonivert remained inside the home at all times; that Bonivert did not threaten or advance toward the officers; that Bonivert posed no immediate threat to the officers; that Combs threw Bonivert across the back room; that Bonivert did not resist arrest; and that Combs tasered Bonivert several times in drive-stun mode notwithstanding Bonivert’s compliance. The evidence does not justify the district court’s conclusion that “no reasonable jury could find the use of force within the home excessive.

With that, the Ninth Circuit reversed the district court’s grant of summary judgment on qualified immunity grounds on the Fourth Amendment claims for unlawful entry
and excessive force.

Excellent decision.

Domestic Violence & Cell Phone Privacy

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In State v. Smith, the WA Supreme Court held that the accidental recording of a domestic violence confrontation between the defendant and his wife was admissible at trial and did not violate the defendant’s rights under the Washington Privacy Act.

BACKGROUND FACTS

John Garrett Smith and Sheryl Smith were married in 2011. On the evening of June 2, 2013, the Smiths engaged in an argument at their home that turned violent. During the incident, Mr. Smith used the home’s landline cordless phone to dial his cell phone in an attempt to locate the cell phone. The cell phone’s voice mail system recorded the incident because Mr. Smith left the landline open during his attempt to find his cell phone. This voice mail contained sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female and name calling by the male.

Mr. Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left their home. When Mrs. Smith regained consciousness, her eyes were black and swollen shut, her face was swollen and bleeding, and she had difficulty breathing.’ Mrs. Smith was hospitalized for several days due to the severity of her injuries, which included a facial fracture and a concussion. For months after the assault, she suffered severe head pain, double vision, nausea, and vertigo.

The State charged Mr. Smith with attempted first degree murder, attempted second degree murder, first degree assault, and second degree assault for the incident.

The Motion to Suppress & Trial

Prior to trial, Mr. Smith filed a motion to suppress the audio recording found on his cell phone that captured part of the incident, including him threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully intercepted the recording pursuant to the Washington Privacy Act, when she listened to the voice message left on his phone. The trial court denied the motion to suppress, ruling that Ms. Williams’s conduct did not constitute an interception. The court also ruled that Washington’s Privacy Act, which prohibits the recording of private conversations without consent, did not apply because the information was accidentally recorded.

The case proceeded to a bench trial. The trial court found Mr. Smith guilty of attempted second degree murder, second degree assault, and the related special allegations of domestic violence, but acquitted him of the remaining counts and the aggravator. Mr. Smith was sentenced to a standard range sentence of 144 months.

The Appeal

He appealed, and his appellate argument focused on the trial court’s denial of the motion to suppress. Smith continued to assert that the recording was unlawfully admitted because Ms. Williams had unlawfully intercepted it.

The Court of Appeals reversed Mr. Smith’s conviction for attempted second degree murder, holding that the trial court erred in denying the motion to suppress the recording of the incident because (1) the recording was of a “private conversation” and (2) Mr. Smith had unlawfully recorded the “private conversation,” despite the fact that the recording was made inadvertently. The Court of Appeals rejected Mr. Smith’s assertion that Ms. Williams had unlawfully intercepted the conversation, and decided the case on a different issue, that is, whether Mr. Smith’s actions violated the privacy act. The State sought review on the issue of how the privacy act is to be properly applied in this case.

ISSUE

Whether the voice mail recording is admissible in Mr. Smith’s criminal prosecution.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court  reverse the Court of Appeals and reinstated Mr. Smith’s attempted second degree murder conviction.

The Court reasoned that accidental, inadvertent recording on a cell phone voice mail of a domestic violence assault did not contain a “conversation” within the meaning of the privacy act, where the recorded verbal exchange consisted mostly of sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female, name calling by the male, and the man stating he will kill the woman when she told him to get away. Furthermore, the owner of the cell phone was deemed to have consented to the voice mail recording due to his familiarity with that function.

The lead opinion was authored by Justice Madsen and signed by Justices Wiggins, Johnson and Owens. Justice González concurred in the result on the grounds that the defendant cannot invade his own privacy and cannot object about a recording he made being used against himself. Justice Gordon McCloud authored a separate concurring opinion, which was signed by Justices Stephens, Yu, and Fairhurst, in which she stated that the verbal exchange on the recording constitutes a “private” conversation which was solely admissible pursuant to statute.

No-Contact Order Lengths

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In State v. Granath, the WA Court of Appeals held that the lower court erred by refusing to lift a post-conviction No-Contact Order when the defendant fulfilled all the conditions of her sentence.

BACKGROUND FACTS

Defendant Wendy Granath was charged with sending a series of harassing
e-mails to her estranged husband. She was convicted in King County District
Court on one count of Cyberstalking and one count of Violation of a No-Contact
Order. Both offenses were designated as crimes of domestic violence.

On November 8, 2012, the court imposed a 24-month suspended sentence. The court ordered 24 months of supervised probation and imposed fines and fees totaling $1,808.

Also on November 8, 2012, the court issued a No-Contact Order. The
order form was captioned as a post conviction domestic violence No-Contact Order authorized by RCW 10.99.050. The order directed Granath not to threaten, stalk, harass, or contact her estranged husband or keep him under surveillance, and not to knowingly come within 500 feet of him, his residence, his school, or his workplace. The order warned, “Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest.”

Notably, the order form includes a blank space for the expiration date:

4. This no-contact order expires on: __________. Five years from today if no date is entered.

In Granath’s case, the district court did not enter a date in the blank, so by
default, the order was set to expire on November 8, 2017.

At any rate, the district court “closed the case” in December 2014 after Granath paid the fines. At this point, the no-contact condition of her sentence no longer remained in effect.

Granath moved to have the No-Contact Order vacated on the ground that it expired when she completed her sentence. However, the district court denied the motion. The court characterized a No-Contact Order issued under RCW 10.99.050 as a “stand-alone” order and found that such an order can “survive on its own” for a full five years even if the underlying sentence is completed earlier.

Granath appealed to King County Superior Court. The superior court
affirmed the lower court’s decision. The Court of Appeals granted Granath’s motion for review.

ISSUE

The legal issue was whether the legislature Intended to criminalize violation of a post conviction No-Contact Order entered as a condition of sentence if the violation is committed after that sentence has been served.

COURT’S ANALYSIS & CONCLUSIONS

The Court summarized the parties’ arguments. It acknowledged that Granath contends that under RCW 10.99.050(1), the no-contact order expires at the same time as the sentence containing the no-contact condition. In her case, that was in December 2014. The State, however, argues the No-Contact Order expires five years after the sentence was imposed.

Ultimately, the Court of Appeals took issue with the State’s argument. It said that the State’s idea that a No-Contact order may remain in effect for a ‘statutory maximum’ of some kind is not expressed in RCW 10.99.050; it is derived from State v. Armendariz. In that case, though, the maximum duration of the No-Contact order was derived from felony sentencing statutes, not from RCW 10.99.050.

“The State fails to come to grips with the plain language of RCW 10.99.050(1),” said the Court. It also criticized the State’s arguments as wrongfully interpreted policy arguments under LAWS OF 1979, 1st Ex. Sess., ch. 105, § 1; RCW 10.99.010.

The Court found that Granath was found guilty of a crime, she was sentenced, and a condition of the sentence restricted her contact with the victim. The district court was required by the statute to record the condition of the sentence as a no-contact order. However, once Granath completed her sentence and her case was closed, the No-Contact condition of sentence expired. The separate no-contact order expired at the same time. The district court erred by denying Granath’s motion to vacate the No-Contact Order.

“We conclude a no-contact order authorized by RCW 10.99.050(1) must reflect a no-contact condition of the sentence actually imposed. The No-contact order terminates when the no-contact condition of sentence terminates.”

With that, the Court of Appeals reversed the District Court’s ruling that the No-Contact Order in this case be preserved for 5 years.

My opinion? Good decision.

 

DV Protection Orders

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In Rodriquez v. Zavala, the WA Supreme Court held that a person does not have to be a victim of domestic violence (DV) in order to be included in a DV protection order.

BACKGROUND FACTS

Esmeralda Rodriguez and Luis Zavala shared a history of domestic violence. Over the course of their relationship, Zavala repeatedly physically and emotionally assaulted Rodriguez. He shoved Rodriguez to the ground while she was pregnant with their infant child L.Z., attempted to smother her with a pillow, blamed her for his failings in life, pulled a knife on her and promised to cut her into tiny pieces, threatened to kidnap L.Z., and said he would do something so horrible to Rodriguez’s daughters from a prior relationship that she would want to kill herself. He threatened to kill her, her children, and himself. Zavala tried to control Rodriguez. He restricted her communication with friends and family members, and he appeared uninvited wherever she was when she failed to return his phone calls.

Zavala’s history of violence against Rodriguez reached its peak one day in June 2015 after the couple had separated. At 2:00 a.m. that morning and in violation of a previous restraining order, Zavala pounded on Rodriguez’s door, threatening to break windows unless she let him in. Rodriguez went to the door and opened it enough to tell Zavala to leave. Zavala pushed past Rodriguez, cornered her, and began choking her. He told Rodriguez he was going to “end what he started.” The police arrived and arrested Zavala.

A few days later, Rodriguez went to the court and petitioned for a domestic violence protection order for herself and her children, including L.Z. In her petition, Rodriguez described the assault and Zavala’s history of violence. The court issued a temporary order pending a full hearing. The temporary order restrained Zavala from contacting Rodriguez and all four children.

At the later protection order hearing, Zavala appeared. Rodriguez discussed the choking incident and told the court that L.Z. had been asleep in another room during the most recent attack. She feared Zavala would take their son based on previous threats. Zavala admitted to coming to the house because he wanted to see L.Z., but denied Rodriguez’s allegations of abuse.

The trial court issued a protective order for Rodriguez and her daughters, but excluded L.Z., explaining that the boy was not “present” during the assault or threatened at all. According to the trial judge, “L.Z. wasn’t involved in any of this.” The order was effective for one year, expiring on June 26, 2016.

Rodriguez appealed. Among other things, she argued that her son should have been included in the final protection order based on her fear that Zavala would hurt L.Z. The Court of Appeals affirmed, finding that a petitioner may seek relief based only on her fear of imminent harm to herself. The WA Supreme Court granted review.

ISSUE

Whether the definition of “domestic violence” in chapter 26.50 RCW contemplates a parent’s fear of harm for a child at the hands of another parent.

COURT’S ANALYSIS AND CONCLUSION

The Court reasoned that in order to commence a domestic violence protection order action, a person must file a petition “alleging that the person has been the victim of domestic violence committed by the respondent. Under the statute, “Domestic violence” is defined as the following:

“(a) physical harm, bodily injury, assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between family or household members; (b) sexual assault of one family or household member by another; or (c) stalking as defined in RCW 9A.46.110 of one family or household member by another family or household member.”

The Court further explained that The Court of Appeals’s interpretation of the statute was unnecessarily narrow. “By relating the fear of harm back to the petitioner, it ignores the final prepositional phrase ‘between family or household members.'” Consequently, because domestic violence includes the infliction of fear of harm between family members generally, the definition includes a mother’s fear of harm to her child by that child’s father.

Also, the context of the statute, related provisions, and statutory scheme as a whole also indicate that “domestic violence” was intended to cover more than merely a petitioner and a perpetrator:

“This definition reflects the legislative recognition that violence in the home encompasses many different familial and household roles; violence does not distinguish on the basis of relationship.”

Moreover, the Court reasoned that a person does not have to be a victim of domestic violence to be included in a protection order. RCW 26.50.060 gives trial courts substantial discretion to protect victims and their loved ones. The provision explains that a trial court may bar a respondent from going to the “day care or school of a child” or having “any contact with the victim of domestic violence or the victim’s children or members of the victim’s household” and that, notably, the court may order “other relief as it deems necessary for the protection of the petitioner and other family or household members sought to be protected.”

Additionally, the Court said that the legislative intent of the Domestic Violence Prevention Act (DVPA) further supports that “domestic violence” includes a petitioner’s fear of harm between family members.

Finally, the Court explained that the plain language of RCW 26.50.010(3), related DV statutes, and the statutory scheme show that the definition of “domestic violence” allows a petitioner to seek relief based on a general fear of harm between family members. It said that deciding that “domestic violence” means the fear possessed only by the one seeking protection not only conflicts with the statute’s plain language, it would leave children unprotected:

“Even more acutely, such an interpretation would fail to protect infants and developmentally delayed children. These are the most vulnerable of our vulnerable populations. Excluding these children from protection orders because they fail to or cannot show fear of a harm they may not understand subjects them to violence the legislature expressly intended to prevent.”

Accordingly, the WA Supreme Court reversed the Court of Appeals because Zavala’s violent threats against L.Z. were “domestic violence” under the plain language of the statute, and Rodriguez properly petitioned for a protection order on L.Z.’s behalf based on her reasonable fear for him.