Category Archives: Eluding

Unlawful Opinion Testimony of Police Officer

Image result for police officer testifying pointing

In State v. Winborne, the WA Court of Appeals held that an officer’s use of the word “reckless” or “eluding” while testifying in a Felony Eluding trial was improper opinion testimony.

BACKGROUND FACTS

The State of Washington charged Tishawn Winborne with Theft of a Motor Vehicle, two counts of Attempting to Elude a Police Vehicle, one count of Second Degree Assault, and one count of Third Degree Assault. The assault charges arise from his resisting
of police officers.

At the start of trial, Tishawn Winborne made a motion in limine to prohibit the State’s witnesses from testifying regarding ultimate factual issues such as whether Winborne “eluded” or drove “recklessly.” However, the trial court denied the motion. For those who don’t know, a motion in limine is a pretrial motion asking that certain evidence be found inadmissible, and that it not be referred to or offered at trial.

During trial, State witnesses repeatedly testified to Tishawn Winborne’s driving “recklessly” or “eluding” law enforcement. At the close of the State’s case, the trial court dismissed the Theft of a Motor Vehicle charge because of insufficient evidence.

The jury found Tishawn Winborne guilty of both counts of Attempting to Elude a Police Vehicle, but acquitted Winborne of both assault charges.

Winborne appealed. Among other issues, he challenged the trial court’s denial of his motion in limine to prohibit any witness from testifying that Winborne drove “recklessly” or “eluded” police.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that no witness, lay or expert, may testify to his or her opinion as to the guilt of a defendant, whether by direct statement or inference. Whether testimony provides an improper opinion turns on the circumstances of the case, including (1) the type of witness involved, (2) the specific nature of the testimony, (3) the nature of the charges, (4) the type of defense, and (5) the other evidence before the trier of fact.

Next, the Court held this case was similar to the controlling precedent of State v. Farr-Lenzini:

“The state trooper in State v. Farr-Lenzini did not employ the word “reckless” in his testimony as did officers in Tishawn Winborne’s trial. Nevertheless, the same reasoning behind excluding the testimony applies. An officer can testify to his observations of the driving of the defendant without drawing conclusions assigned to the jury.”

Finally, the Court of Appeals held that the trial court abused its discretion by denying Tishawn Winborne’s motion in limine. It reasoned that the State’s police officer witnesses testified by direct statements to Tishawn Winborne’s guilt. “Whether Tishawn Winborne drove ‘recklessly’ or ‘eluded’ the officer is an element of attempting to elude a police vehicle,” said the Court. “A law enforcement officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability.”

With that, the Court of Appeals reversed Tishawn Winbome’s convictions for Felony Eluding a Police Officer and remanded for a new trial.

My opinion? Good decision. The Court of Appeals is correct in saying that a police officer’s improper opinion testimony may be particularly prejudicial because it carries a special aura of reliability. This is true. Instinctively, most jurors give much weight to the testimony of police officers. And the police officers know that. For those reasons, it is imperative for defense attorneys to argue pretrial motions in limine asking the trial judge to prohibit the police officers from offering their opinions at trial and to take exception to the court’s adverse rulings; thus preserving the issue for appeal. Kudos to the defense attorney in this case.

Bellingham’s Most Dangerous Intersections

Informative article by David Rasbach of the Bellingham Herald reports on statistics provided by the Bellingham Police Department Traffic Division showing Bellingham’s most dangerous intersection.

Apparently, at least in terms of the sheer number of accidents, West Bakerview Road and Northwest Drive reigns as the most dangerous intersection in the city.

In a distracted driving study conducted by its traffic division from January 2016 through June 2017, Bellingham Police received 1,350 reports of accidents within city limits, regardless of severity or injury. Of those, 43 accidents occurred at the intersection of Bakerview and Northwest — the highest total of any intersection in town.

Rasbach also reports that three of the top four most dangerous intersections during the 18-month study were in that same corridor: West Bakerview Road and Eliza Avenuehad the third highest accident total with 22 wrecks, while West Bakerview Road and Cordata Parkway was fourth highest with 18.

The only intersection breaking up Bakerview’s stranglehold on the top of Bellingham’s dangerous intersections list — Lakeway Drive and Lincoln Street, which had 25 reported accidents — is very similar, with two busy shopping centers and a school occupying three of the four corners. Nearby Lakeway Drive and King Street tied for sixth-most dangerous with Woburn Street and Barkley Boulevard with 14 reported accidents, each.

Also, the lone roundabout at Cordata Parkway and West Kellogg Road had 16 accidents reported.

Please contact my office if you, a family member or friend are criminally charged for traffic-related incidents. Unfortunately, it’s very easy to be charged with DUI, Reckless Driving, Negligent Driving, Driving While License Suspended, Eluding and/or numerous traffic citations. Bellingham’s dangerous intersections only exacerbate the situation and make it more likely that an unlawful pretextual pullover will happen.

Most of all, drive safe!

The Neurology of Risky Driving Behavior

A very interesting article from the Association for Psychological Science discusses how a team of Canadian psychological scientists is looking at the personality, cognitive, and neurobiological factors that contribute to reckless driving behavior. By better understanding the patterns of emotional processing and risk perception shown by repeat offenders, the researchers hope to design interventions that more effectively target these subgroups of dangerous drivers.

The evidence certainly exists. According to the article, drunk driving accounts for 35-40% of all driver fatalities in Canada and the United States, and drunk driving crashes kill more than 10,000 Americans every year. Amazingly, an estimated 30% of DUI offenders will continue to drink and drive, even after being arrested and punished.

“Surprisingly, these drivers usually don’t consider themselves as risk takers,” lead author Thomas G. Brown of McGill University said. “If drivers don’t believe they are risky, they will not accept the need to change. On the other hand, if we and they don’t understand their behavior, how can they be expected to change it effectively?”

The study began when Brown and his colleagues recruited four groups of male drivers who had different criminal histories: 36 men with at least two convictions for drunk driving (DUI group); 28 reckless drivers with at least three speeding violations in the past two years (speeders); 27 men with arrests for both DUI and speeding (DWI-speeders); and 47 low-risk drivers with no history of serious traffic offenses (control group).

According to the article, participants completed a battery of personality and impulsivity assessments, ranging from a Big Five personality measure to an executive control task that assessed their sensitivity to punishment and reward. Participants’ cortisol response, a hormonal reaction to stress, was measured by collecting saliva samples before and after they completed a timed mental arithmetic task previously shown to elicit stress.

Even more interesting, participants also completed a session of simulated driving that included driving on virtual highways, merging lanes, turning at intersections, and avoiding pedestrians.

The researchers found that different subgroups of risky drivers had distinctive neurobiological profiles. Compared to the low-risk control group, speeders were prone to making decisions based on thrill-seeking and a need for high levels of stimulation. Repeat DUI offenders, in contrast, had the lowest level of risk-taking behavior while sober.

“One possibility in line with the present results is that once heavy drinking has occurred, more impulsive drivers are more vulnerable to alcohol’s disruptive effects on the behavioral control mechanisms required to avoid DWI,” the researchers explain.

All of the dangerous driving groups exhibited significant blunting in their cortisol stress response compared with the control group. Cortisol, along with other stress hormones, influences cognitive processes that range from risk assessment to encoding emotional memories. These results suggest that dysregulation of the body’s cortisol response could act as a neurobiological marker for risky driving behavior.

“Relative to the other [risky driving] profiles considered here, the profile exhibited by group DUI may be the most amenable to interventions that aim to augment recall of the negative consequences of DUI behavior and pre-emptively decouple alcohol use from driving,” the researchers conclude.

Stated differently, interventions designed to improve drivers’ recall of the negative consequences of drinking and driving are effective for preventing drunk driving. This explains the findings why repeat DUI offenders had the lowest level of risk-taking behavior while sober.

My opinion? The study is interesting, for sure. Not surprisingly, the criminal justice system uses many of these these psychological deterrents to “decouple alcohol use from driving.” When it comes to DUI cases, gaining a worthwhile reduction of the charges often means the defendant obtaining an alcohol/drug evaluation, attending mandatory treatment, attending AA meetings and attending a Victim Impact Panel. Additionally, the financial costs of DUI fines and mandatory ignition interlock devices are constant reminders to DUI offenders that future risky behavior is simply not worth it.

That said, hiring a competent DUI attorney to fight DUI charges might be a worthy endeavor. The basic legal issues surrounding a DUI arrest are (1) whether the stop was lawful, (2) whether there was enough evidence to arrest, (3) whether the officer informed the defendant of Implied Consent Warnings, and (4) whether the defendant either (a) refused the BAC breathalyzer machine or (b) blew over .08 and/or had .05 nanograms of active THC in their blood when pulled over.

If you’re charged with DUI, the best advice is to immediately contact a competent DUI defense attorney to discuss your case. Good luck!

State v. Feely: Endangering Other Officers During Pursuit Brings Enhanced Penalties

Here’s an interesting case out of Whatcom County.

In State v. Feely, the WA Court of Appeals held that a defendant convicted of Attempting to Elude a Police Vehicle also faces sentencing enhancements under RCW 9.94A.834 when an officer who deploys spike strips is endangered.

Shortly after midnight, Trooper Travis Lipton was parked in an unmarked vehicle on the shoulder of the northbound on ramp to Interstate 5. A pickup truck driven by defendant Thomas Feely passed very close to Trooper Lipton’s car while merging onto the freeway. Trooper Lipton saw the truck drift into the left lane before returning to the right lane. He followed Feely.

Once Trooper Lipton caught up to Feely, he started his car’s audio and video recording system. He observed Feely drift “back and forth within the right lane continuously,” and cross the fog line and the “center skip line” dividing the two lanes. After Feely failed to signal a lane change, Trooper Lipton activated his siren and emergency lights.

Feely continued northbound. Trooper Lipton advised dispatch of Feely’s failure to stop. Feely took the next exit and ran the stop sign at the top of the exit ramp. Feely continued on the two-lane road, greatly exceeding the speed limit and drifting “over onto the oncoming lane frequently.” He bypassed two cars that slowed or stopped as a result. Trooper Lipton requested dispatch contact other troopers to deploy spike strips.

Police set up a spike strip, but Feely went around it. Sergeant Larry Flynn set up another spike strip. Feely attempted to drive around it but “immediately locked up” his brakes. He “slid almost the whole way” towards Sergeant Flynn and stopped just short of where Sergeant Flynn was standing. Feely then “started to jerk forward” towards Sergeant Flynn by the side of the road. Sergeant Flynn released some slack on the spike strips so he could get farther off the road. Feely ran over one of the spike strips with his front left tire and sped away. Trooper Lipton maintained his pursuit.

After turning down a private driveway, Feely drove his truck into a swamp. He ran into the woods, leaving one shoe behind in the mud. More police officers shortly arrived, and after searching with two police dogs, they found Feely hiding in a tree. He had no shoes on and his clothes were wet. The officers took Feely into custody and smelled alcohol on his breath.

Trooper Lipton took Feely to a hospital. About an hour later, Trooper Lipton collected Feely’s blood, which registered a blood alcohol level of 0.13.

The State initially charged Feely with one count of Felony Driving Under the Influence (DUI) and one count of Attempting to Elude a Pursuing Police Vehicle with an endangerment sentencing enhancement. The State later amended the information to allege an aggravating circumstance under RCW 9.94A.535(2)(c) because Feely had committed multiple current offenses and his high offender score results in some of the current offenses going unpunished.

At trial, Feely stipulated that he had four prior qualifying convictions, elevating the DUI to a felony. The jury found Feely guilty as charged. In a special verdict, the jury also found that a “person, other than [Feely] or a pursuing law enforcement officer, was endangered by Feely’s actions during his commission of the crime of Attempting to Elude a Police Vehicle.”

The trial court sentenced Feely to 60 months for the felony DUI. The court sentenced him to 29 months for attempting to elude, plus 12 months and one day for the endangerment enhancement. The court ordered “all counts shall be served consecutively, including the portion of those counts for which there is an enhancement.” The court imposed this upward exceptional sentence after expressly finding that Mr. Feely committed multiple current offenses and the defendant’s high offender score resulted in some of the current offenses going unpunished.

Feely appealed. One of his arguments was that the prosecutor misstated the law when he argued the jury “could find Feely endangered someone other than himself or a pursuing police officer if it found he endangered the officers who deployed the spike strips.”

However, the Court of Appeals disagreed. It reasoned that the prosecutor did not misstate the law in arguing that the jury could consider Feely’s endangerment of the spike strip officers for the sentencing enhancement.

The Court also reasoned that multiple, corroborating facts identified Feely as the driver of the truck, consequently, compelling evidence supports his convictions:

Moreover, Feely’s crime was captured on Trooper Lipton’s vehicle’s video recording system and admitted at trial. This video showed one driver driving a truck registered to Feely’s parents. The officers testified that they followed Feely down the private driveway, where they found his truck stuck in a swamp with the driver side window partially rolled down and the driver side door ajar. The passenger side door was closed and an expired Washington State identification card belonging to Feely was in the center console. The officers also testified that they heard what “sounded like one person” “making his way through the brush and the sticks,” and that they did not hear any sounds coming from any other direction. Moreover, police dogs, who arrived within five minutes of finding Feely’s truck, were able to locate him hiding nearby in a tree. These dogs led the officers to the same tree. Feely smelled of alcohol, and several hours after the incident, had a blood alcohol level of 0.13.

Additionally, the Court of Appeals rejected Feely’s argument that the Prosecutor’s minimization of the State’s burden of proof here was improper. It reasoned that the prosecutor here never implied the jury had a duty to convict without a reason to do so or ever suggested that the burden of proof shifted to Feely. “In context of the total closing argument, we conclude the prosecutor did not trivialize the State’s burden.” Consequently, and because Feely did not object at trial and fails to establish any resulting prejudice, the Court decided Feely’s claim fails.

Finally, the Court of Appeals concluded the trial court properly imposed an exceptional sentence based on Feely’s high offender score: “Under the Sentencing Reform Act of 1981, chapter 9.94A RCW, the sentencing range increases based on the defendant’s offender score, up to a score of 9.59. Based on Feely’s offender score of 14 for each count, he faced a 60–month sentence for the felony DUI conviction alone.”