Category Archives: Evidence

Autopsy Photos Admitted

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In State v. Whitaker, the WA Court of Appeals held that a trial court properly admitted 15 of 100 autopsy photographs over the objection of the defendant who was charged with aggravated murder. The probative value of the photographs in helping to illustrate the medical examiner’s testimony outweighed their prejudicial effect.

FACTUAL BACKGROUND

Mr. Whitaker was charged with helping his friend Mr. Anderson and several others kidnap and Ms. Burkheimer, who was Anderson’s ex-girlfriend. Whitaker helped to bind, hide, and transport Burkheimer. He helped to dig her grave, rob her, bury her, and destroy evidence
of her murder.

At trial, the court admitted 15 autopsy photographs during the testimony of the medical examiner. The medical examiner testified that around 100 photographs were taken during Burkheimer’s autopsy and that the 15 selected for trial showed the injuries to Burkheimer’s body, what the medical examiner looked at when he decided where the bullet exit and entry wounds were, and how Burkheimer’s injuries related to one another.

The jury found Whitaker guilty of premeditated first degree murder, with an aggravating factor of kidnapping and a firearm enhancement, and conspiracy to commit first degree murder. During the trial, Whitaker moved for a mistrial several times, alleging numerous errors were made during trial; one of the errors being whether the trial court improperly admitted the photographs of the victim’s autopsy.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals upheld Whitaker’s conviction and reasoned that accurate photographic representations are admissible, even if gruesome, if their probative value outweighs their prejudicial effect.

“A bloody, brutal crime cannot be explained to a jury in a lily-white manner.”

“The admission of autopsy photographs is in the sound discretion of the trial court,” said the Court of Appeals. “Photographs have probative value where they are used to illustrate or explain the testimony of the pathologist performing the autopsy. Unless it is clear from the record that the primary reason to admit gruesome photographs is to inflame the jury’s passion, appellate courts will uphold the decision of the trial court.” Furthermore, reasoned the Court, the law requires an exercise of restraint, not a preclusion simply because other less inflammatory testimonial evidence is available.

The medical examiner’s testimony explaining the photographs and his conclusions about Burkheimer’s injuries was straightforward and not inflammatory.

“There is no doubt that these photographs are disturbing,” said the court. “But this was a brutal crime, and the record does not show that the primary reason for admitting the photographs was to inflame the jury.” Rather, reasoned the Court, the photographs were admitted to support the testimony of the medical examiner. “The State did not offer all 100 of the photographs but instead selected 15 that best illustrated Burkheimer’s injuries,” said the Court. Therefore, the trial court did not abuse its discretion by admitting them.

With that, the Court of Appeals upheld Mr. Whitaker’s conviction and sentence.

My opinion? The admissibility of evidence is one of the most important battles in trial practice. Courts conduct balancing tests on this issue under Evidence Rules 401, 402 and 403. Under these evidence rules, judges can admit evidence which is relevant and probative as long as the evidence is also not prejudicial to the defendant’s case.  Prejudicial evidence includes evidence which may inflame the passions of the jury. Understandably, however, the prejudicial effect can be outweighed by the probative value. In this case, the probative value of the medical examiner’s testimony outweighed the prejudicial effect these photos may have had on the jury.

Contact my office if you, a friend or family member are charged with a crime involving photographic evidence which could be prejudicial to the case.

Rape Kit Backlog Resolved

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Survivors of sexual assaults in Washington state can now track the progress of their kits being analyzed through a new online portal.

The Seattle Post-Intelligencer reports that the Washington State Patrol has implemented this week the online tracking system for sexual assault kits to allow survivors, as well as lawyers, medical staff and law enforcement to follow the testing process.

The state completed an inventory of untested sexual assault kits last month, counting 6,460 kits that had not yet been submitted by law enforcement agencies across the state for lab testing. The oldest untested kit dated back to 1982.
Larry Hebert, director of the patrol’s forensic laboratory services bureau, says a kit can take four to six weeks to process.
My opinion? This is a great development in the right direction. Alleged victims who believed they were sexually assaulted should be encouraged to get rape kit examinations as soon as possible; and should also have assurances that the evidence will be handled quickly. Oftentimes, a sexual assault allegations come down to  “He said / She said” arguments with very little to virtually no proof of sexual assault. Rape kit exams help solve this problem.
Please contact my office if you, a friend or family member are charged with sexual assault. It’s imperative to find a qualified and competent defense attorney who can navigate the investigations, argue pretrial motions, conduct witness interviews and possibly go to trial.

Online Research By Juror

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In State v. Arndt, the WA Court of Appeals upheld a defendant’s numerous high-level criminal convictions even though one of the jurors performed online research against the court’s instructions.

FACTUAL BACKGROUND

On February 23, 2014, Ms. Arndt and her boyfriend, Mr. Veeder Jr., spent the night at their
friends’ home. Late that night, the house caught fire. Everyone in the home escaped except Mr. Veeder, who died.

After an investigation, the State charged Arndt with murder in the first degree with an
aggravating circumstance of arson in the first degree, felony murder in the first degree with
aggravating circumstances, arson in the first degree, and six counts of assault in the second degree.

The jury found Arndt guilty as charged. The trial court sentenced Arndt to life in prison without the possibility of release or parole.

Months after the verdict, Juror 2 approached a woman whom she did not know was the
sister of Arndt’s trial attorney. Juror 2 said that in Arndt’s trial, she struggled with the term
“premeditation.” She further related that to better understand the term, she looked it up on the internet. The attorney’s sister told her brother what she had learned.

Defense investigator James Harris then met with Juror 2, explained that he worked for Arndt’s trial attorney, and asked to speak with her about her experience as a juror. Juror 2 spoke with Harris and told him that during deliberations she did internet research on the word “premeditation.” Juror 2 provided Harris with additional information, including sites she may have viewed. The State’s investigator also interviewed Juror 2.

Arndt moved for a new trial on grounds of juror misconduct. At a hearing on the motion,
the court heard testimony from Juror 2 and Harris. Juror 2 testified that she had researched the term “premeditation” and had found different sites, but did not remember whether she had viewed any of the specific sites she had showed Harris when he earlier interviewed her. She said that she looked at a couple different definitions, but it was the word “short” that made her understand. Juror 2 also testified that she had not shared her
research with other jurors.

Ultimately, the trial court held Arndt should not get a new trial:

“In substance, the Court finds that the definitions viewed by Juror #2 were indistinguishable to the jury instruction and were consistent with the law. Because the known research results, as presented to the Court, were consistent with the jury instruction on premeditation and the law, the Court is satisfied beyond a reasonable doubt that Juror #2’s research could not have affected the verdict. Therefore, the motion for a new trial is denied.”

Arndt appealed to the WA Court of Appeals.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that Juror 2 committed misconduct. Also, the consideration of novel or extrinsic evidence by a jury is misconduct and can be grounds for a new trial. Furthermore, juror use of extraneous evidence is misconduct and entitles a defendant to a new trial, if the defendant has been prejudiced.

“Once juror misconduct is established, prejudice is presumed,” said the Court of Appeals. “The court must grant a new trial unless it is satisfied beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict.”

The Court of Appeals also reviewed the trial court’s instructions to the jury on the definition of “Premeditation.” It stated the following:

“Premeditated means thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.”

Finally, the Court of Appeals reasoned that although the exact websites Juror 2 visited and the precise definitions she viewed are unknown, the part of those definitions that had an impression on her and affected her verdict were the word “short” and phrase “however short.”

“As the trial court ruled, these definitions were indistinguishable to the jury instruction and were consistent with the law,” said the Court of Appeals. “This ruling is sufficient to satisfy beyond a reasonable doubt that the extrinsic evidence did not contribute to the verdict and to overcome the presumption of prejudice. The court did not abuse its discretion.”

With that the Court of Appeals concluded the trial court did not abuse its discretion by concluding that Juror 2’s research did not contribute to the verdict. Accordingly, the Court of Appeals affirmed Arndt’s conviction.

My opinion? The Court’s decision is frustrating. It placed too much weight on whether the juror’s misconduct prejudiced the defendant. Instead, the Court should have focused on the fact that juror misconduct happened in the first place.

If you stole a candy bar from a grocery store, would your shoplifting affect the store’s bottom line? Probably not. However, the simple fact that you stole a candy bar is, in fact, a crime which demands an effective and just remedy. Otherwise, a crime which goes unpunished is essentially not a crime, correct?

Here, Juror 2 blatantly disregarded the court’s instructions to not perform online research. Did Juror 2’s research affect her decision on the verdict? Did Juror 2 discuss her research with other jurors behind closed doors when they deliberated the case? Therein lies the threat to justice; not only to this defendant, but criminal defendants everywhere. Online research should not be tolerated, even if it can be willed away away as having no impact on the outcome. Bad decision.

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

FBI Historical Cell Site Analysis

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In State v. Ramirez, the WA Court of Appeals held that cell site location testimony is widely accepted throughout the country, and it is not error under ER 702, to allow an FBI agent with sufficient training and experience to testify regarding historical cell site analysis.

BACKGROUND FACTS

Mr. Ramirez was charged with two counts of premeditated first degree murder and one count of unlawful possession of a firearm. All crimes occurred at Spokane County’s Broadway Square Apartments.

In addition to other pretrial motions, the defense also filed a motion to exclude a report and testimony from FBI Special Agent Jennifer Banks. The State named Special Agent Banks as an expert witness on historical cell site analysis. According to Banks’s report, records obtained from Mr. Ramirez’s cell phone provider placed him near the Broadway Square Apartments 10 minutes before the first 911 call was placed. The defense argued that Banks’s testimony should be struck based on late disclosure and because it failed to meet both the Frye standard for admissibility and the criteria for expert testimony under ER 702.

The parties argued the pending pretrial motions on the morning set for trial. Prior to jury selection, the trial court also held a Frye hearing to determine the admissibility of Special Agent Banks’s testimony. She testified that due to being a member of the FBI’s Cellular Analysis Survey Team (CAST), she received training in deciphering cell phone records.

Agent Banks also described two components to her work. First, she interprets historic call detail records from cellular telephone providers in order to discern the location of cell towers activated by a particular voice call or text message. Second, she performs field tests of geographic areas to determine the strength of various cell towers. These tests involve driving through a location with a scanning device which uploads cellular frequencies in a given area to a computer program and plots signal strengths on an area map. Agent Banks testified that CAST agents had testified in approximately 400 courts throughout the country and that the CAST methodology is more widely accepted in the law enforcement community than any other cellular location method.

Defense counsel argued that Agent Banks’s testimony should be struck because her expert report was untimely and because the FBI’s mapping software had not been validated. The State made clear that it would not object to a continuance if Mr. Ramirez wanted more time to evaluate Agent Banks’s report. However, Mr. Ramirez insisted on moving forward with trial as scheduled. The trial court ultimately permitted the State to go forward with Agent Banks’s testimony, finding that the substance of the testimony was not novel.

TRIAL

During her testimony, Agent Banks explained how her CAST analysis applied to Mr. Ramirez’s case. Agent Banks said Mr. Ramirez’s call detail records included not only a code for each cell site antenna activated by Mr. Ramirez’s phone calls and texts, but also the 120-degree angle that the antenna had been pointed at the time of connection. By plotting the call detail data onto a map, Agent Banks determined Mr. Ramirez’s cell phone was in the area of the Broadway Square Apartments at 9:24 p.m. on November 1, 2014. This was approximately 10 minutes before the first 911 calls.

In addition to interpreting the call detail records, Agent Banks explained the field test she performed in connection to Mr. Ramirez’s case. To perform the test, Special Agent Banks drove through Spokane Valley, collecting cell tower frequencies with an FBI scanner. The FBI’s scanning software was then able to generate a map, showing the coverage strength area for each of the cell towers activated by Mr. Ramirez’s cell phone. The maps developed from the drive-through process largely corroborated the information indicated from the maps developed solely from the call detail records.

The jury found Mr. Ramirez guilty as charged. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

Among other issues, Mr. Ramirez argued the trial court erred when it found Agent Banks’s cell site analysis admissible under Frye and ER 702. Mr. Ramirez complained that the software program used by the FBI is proprietary, and thus has not been subject to independent peer review. He also claimed Agent Banks’s testimony was unhelpful to the jury because the FBI cell site location methodology failed to account for imperfections in the cell transmission process, such as weather, obstructions, and network traffic.

The Court of Appeals discussed the Frye standard for determining the admissibility of novel scientific evidence. The standard has two parts. It asks (1) whether the underlying theory is generally accepted in the scientific community, and (2) whether there are techniques utilizing the theory that are capable of producing reliable results. Evidence not involving “new methods of proof or new scientific principles” is not subject to examination under Frye. The Court also reasoned that with respect to the Frye standard, cell site location testimony is not novel; and is widely accepted throughout the country:

“Historical cell-site analysis can show with sufficient reliability that a phone was in a general area, especially in a well-populated one. It also shows the cell sites with which the person’s cell phone connected, and the science is well understood.”

Furthermore, the Court reasoned that Agent Banks bolstered the reliability of her historical analysis by performing a drive-through analysis of the signal strength of the cell towers activated by Mr. Ramirez’s cell phone and evaluating the particular characteristics of the cell tower with which Mr. Ramirez’s phone connected, including its power and the direction its antennae were facing.

“The theories behind the drive-through test/cell tower strength testimony were sound,” reasoned the Court. It is not novel or uncommon to measure the strength of cell tower or radio frequencies. In addition, computer programs routinely generate maps that correspond to real-world data. “Concerns about the FBI’s software program did not present a reason for excluding Agent Banks’s testimony under Frye, said the Court.

Finally, the Court of Appeals decided the trial court also did not abuse its discretion in admitting Agent Banks’s testimony under ER 702. “It is undisputed that Agent Banks qualifies as an expert in historical cell site analysis,” said the Court. “Her testimony was also helpful to the jury.” The Court explained that Agent Banks did not overestimate the quality of her cell site analysis. Throughout her testimony, she made the jury aware of the imprecision of cell site location information. She cross tested the information obtained from the cell location records with information from her drive-through signal strength test. “Mr. Ramirez cannot identify any realistic risk that the jury would have been confused by the nature of this testimony. The evidence was therefore properly admitted.”

With that the Court of Appeals affirmed Mr. Ramirez’s judgment and sentence.

My opinion? Interesting decision. The admissibility of this evidence involves challenges which, in turn, involve very complex questions of physics, signal timing, reliability, etc. First, does the network reliably collect and report the underlying data, in particular the signal timing and power measurements? Second, is the enhanced historical cell sector analysis a reliable method to determine accurate location information for a target cell phone at a point in the past? A closely related third question is what scope of expertise required to establish the reliability of the data collected and the methods used to interpret that data.

Contact my office if you, a friend or family member are charged with a crime involving historical cell site analysis from a law enforcement officer.

Inadmissible & Irrelevant Evidence

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In State v. Burnam, the WA Court of Appeals held that the trial court correctly excluded evidence that the woman the defendant killed had four years earlier dated a man accused of murder and that she had hid the murder weapon.

BACKGROUND FACTS

Mr. Burnam was charged with first degree murder or, in the alternative, second degree murder and interfering with the reporting of domestic violence. As trial approached, Mr. Burnam wanted to testify in support of his self-defense claim. He also wanted to testify that the victim Ms. Sweet had been involved in a prior homicide.

Apparently, four years earlier, Ms. Sweet dated a man accused of murder and she had hid the murder weapon, which was a firearm. Sometime after the homicide, Ms. Sweet briefly gave the firearm away and then attempted to get it back. When law enforcement questioned her, she was evasive and misleading. She was charged and convicted of first degree rendering criminal assistance by means of concealing, altering, or destroying the gun.

Mr. Burnam claimed that this was character evidence and asked the court to analyze its admissibility under ER 404(b). Under this evidence rule, evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent

Mr. Burnam made a lengthy offer of proof in support of his motion. He argued that the evidence would help establish the reasonableness of his fear of serious harm or death during his struggle with Ms. Sweet. He repeatedly asserted the jury should know that Ms. Sweet was involved with a homicide or capable of being involved with a person who had committed a homicide.

Despite defense counsel’s offer of proof, the court nevertheless excluded all evidence of the homicide case that Ms. Sweet was involved in.

At trial, Mr. Burnam testified he responded in self-defense to Ms. Sweet. Despite his testimony, the jury found Mr. Burnam guilty of first degree murder and interfering with the reporting of domestic violence. Mr. Burnam appealed on arguments that the court should have admitted evidence that Ms. Sweet was involved in a murder from four years ago.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that both the United States Constitution and the Washington Constitution guarantee the right to present testimony in one’s defense. Furthermore, a defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence. However, defendants can present only relevant evidence and have no constitutional right to present irrelevant evidence. If relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial.

Admissibility of Self-Defense Evidence.

The Court further reasoned that in considering a claim of self-defense, the jury must take into account all of the facts and circumstances known to the defendant.

“Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court. “Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.”

Moreover, evidence of a victim’s violent actions may be admissible to show the defendant’s state of mind at the time of the crime and to indicate whether he had reason to fear bodily harm. Thus, a defendant may, in addition to the character evidence, show specific acts of the victim which are not too remote and of which the defendant had knowledge at the time of the crime with which he is charged. Evidence of specific acts may be admissible for the limited purpose of showing the defendant had a reasonable apprehension of danger.

Finally, the court reasoned that an offer of proof should (1) inform the trial court of the legal theory under which the offered evidence is admissible, (2) inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility, and (3) create an adequate record for appellate review.

The Court of Appelas concluded that Mr. Burnam’s offer of proof failed to inform the trial judge of the specific nature of the offered evidence.

“Mr. Burnam’s offer of proof was lengthy but repeatedly vague on the specific nature of the offered evidence.”

The Court further concluded that Ms. Sweet merely pleaded guilty to rendering criminal assistance by disposing of a firearm used previously in a homicide. Nevertheless, rendering criminal assistance is a nonviolent felony.

“The mere fact that Ms. Sweet dated a man accused of murder and hid the murder weapon does not strongly imply that Ms. Sweet was violent. The prejudicial effect of excluding this questionable evidence is minimal. We conclude the trial court did not violate Mr. Burnam’s constitutional right to present a defense when it excluded this evidence.”

Consequently, the Court of Appeals upheld the trial court’s decision to exclude evidence that Ms. Sweet was indirectly involved in a homicide from four years earlier.

Please contact my office if you, a friend or family member are involved in cases involving assault or self-defense. Generally speaking, evidence that the victim had prior bad acts and/or had violent tendencies is admissible. However, court must undergo a balancing test under the evidence rules to determine if the evidence being offered is relevant, probative and/or unfairly prejudicial. This case was fairly straightforward in determining that the dead victim’s prior conviction for a non-violent crime was irrelevant.

Facebook Photos Admissible

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The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farrad gives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the  Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

In September 2014, a federal grand jury charged Farrad with having, on or about October 11, 2013, knowingly possessed a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds.
The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11).

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person  and so long as the evidence is subject to challenge by  the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

Search Within Curtilage

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In Collins v. Virginia, the United States Supreme Court held that officers may not enter the curtilage of a house without a search warrant in order to remove the tarp from a motorcycle in order to confirm that the motorcycle was stolen.

BACKGROUND FACTS

During the investigation of two traffic incidents involving an orange and black motorcycle with an extended frame, Officer David Rhodes learned that the motorcycle likely was stolen and in the possession of petitioner Ryan Collins. Officer Rhodes discovered photographs on Collins’ Facebook profile of an orange and black motorcycle parked in the driveway of a house, drove to the house, and parked on the street. From there, he could see what appeared to be the motorcycle under a white tarp parked in the same location as the motorcycle in the photograph.

Without a search warrant, Office Rhodes walked to the top of the driveway, removed the tarp, confirmed that the motorcycle was stolen by running the license plate and vehicle identification numbers, took a photograph of the uncovered motorcycle, replaced the tarp, and returned to his car to wait for Collins. When Collins returned, Officer Rhodes arrested him.

Collins was indicted by a Virginia grand jury for receiving stolen property. He filed a pretrial motion to suppress the evidence that Officer Rhodes had obtained as a result of the warrantless search of the motorcycle on the grounds that Officer Rhodes violated the Fourth Amendment when he trespassed on the house’s curtilage to conduct a search. The trial court denied Collins’ motion to suppress the evidence. Collins was convicted as charged. The Virginia Court of Appeals affirmed. The Virginia State Supreme Court also affirmed, holding that the warrantless search was justified under the Fourth Amendment’s automobile exception to the warrant requirement.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court held the automobile exception to the warrant requirement does not permit the warrantless entry of a home or its curtilage in order to search a vehicle therein.

“This case arises at the intersection of two components of the Court’s Fourth Amendment jurisprudence: the automobile exception to the warrant requirement and the protection extended to the curtilage of a home.”

Justice Sotomayor delivered the opinion of the Court. First, the court discussed the automobile exception to the warrant requirement. Basically, under the exception, a vehicle may be searched without a warrant when the evidence or contraband may possibly be removed from the scene due to the mobility of a vehicle and it is not practical to secure a warrant without jeopardizing the potential evidence.  For instance, the automobile exception allows an officer to make a warrantless traffic stop and search a truck of a vehicle when gun parts were observed in plain view on the front seat of the vehicle.

Here, the Supreme Court emphasized that the automobile exception rationales applied only to automobiles and not to houses, and therefore supported their different treatment as a constitutional matter. “When these justifications are present, officers may search an automobile without a warrant so long as they have probable cause,” said the Court.

The court also discussed “curtilage.” In short, curtilage includes the area immediately surrounding a dwelling, and it counts as part of the home for many legal purposes, including searches. “Curtilage—the area immediately surrounding and associated with the home—is considered part of the home itself for Fourth Amendment purposes,” said the Court. Thus, when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.

Consequently, the court reasoned that the part of the driveway where Collins’ motorcycle was parked and subsequently searched is curtilage:

“When Officer Rhodes searched the motorcycle, it was parked inside a partially enclosed top portion of the driveway that abuts the house. Just like the front porch, side garden, or area outside the front window, that enclosure constitutes an area adjacent to the home and to which the activity of home life extends.” Jardines, 569 U. S., at 6, 7.”

The Court also reasoned because the scope of the automobile exception extends no further than the automobile itself, it did not justify Officer Rhodes’ invasion of the curtilage. “Nothing in this Court’s case law suggests that the automobile exception gives an officer the right to enter a home or its curtilage to access a vehicle without a warrant,” said the Court. “Such an expansion would both undervalue the core Fourth Amendment protection afforded to the home and its curtilage and untether the exception from the justifications underlying it.”

This Court also reasoned that just as an officer must have a lawful right of access to any contraband he discovers in plain view in order to seize it without a warrant, and just as an officer must have a lawful right of access in order to arrest a person in his home, so, too, an officer must have a lawful right of access to a vehicle in order to search it pursuant to the automobile exception. “To allow otherwise would unmoor the exception from its justifications, render hollow the core Fourth Amendment protection the Constitution extends to the house and its curtilage, and transform what was meant to be an exception into a tool with far broader application,” said the Court.

Furthermore, the Court disagreed with Virginia’s proposed bright line rule for an automobile exception that would not permit warrantless entry only of the house itself or another fixed structure, e.g., a garage, inside the curtilage. “This Court has long been clear that curtilage is afforded constitutional protection, and creating a carve-out for certain types of curtilage seems more likely to create confusion than does uniform application of the Court’s doctrine,” said the Court. “Virginia’s rule also rests on a mistaken premise, for the ability to observe inside curtilage from a lawful vantage point is not the same as the right to enter curtilage without a warrant to search for information not otherwise accessible.”

Finally, the Court held that Virginia’s rule automatically would grant constitutional rights to those persons with the financial means to afford residences with garages but deprive those persons without such resources of any individualized consideration as to whether the areas in which they store their vehicles qualify as curtilage.

With that, the Supreme Court reversed and remanded Collins’ conviction for receiving stolen property.

Justice Roberts, Kennedy, Thomas, Ginsberg, Breyer, Kagan and Gorsuch joined the majority opinion.  Justice Thomas also filed a concurring opinion. Justice Alito filed a dissenting opinion.

Please contact my office if you, a friend or family member’s house is searched by law enforcement officers who don’t have a search warrant. It’s quite possible to suppress evidence based on an unlawful search and get any criminal charges dismissed.

Expert Witnesses & Meth

Image result for methamphetamine aggression

In State v. Richmond, the WA Court of Appeals held that a defense expert witness’s proposed testimony regarding the effects of methamphetamine was properly barred at trial because the expert never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion.

BACKGROUND FACTS

Dennis Higginbotham went to Joseph Richmond’s property with two other individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to accompany her to Mr. Richmond’s property so that she could remove some of her belongings.

A verbal argument ensued between Mr. Richmond and Mr. Higginbotham. After the verbal argument, Mr. Richmond went into his house. His return to the house was a relief. It appeared the hostility had come to an end.

Unfortunately, this turned out not to be true. Instead, Mr. Richmond ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words. Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr. Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit, Mr. Higginbotham spun around and fell face first on the ground.

When emergency personnel arrived at the scene, it was determined Mr. Higginbotham had suffered severe head trauma. He was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly thereafter.

Mr. Richmond was charged with second degree murder.

Mr. Richmond lodged a self-defense theory against the State’s murder charges. In support of this theory, Mr. Richmond sought to introduce testimony from several experts. One of the experts was David Predmore. Mr. Predmore was offered to testify about the general effects of methamphetamine consumption on human behavior. According to the defense, this testimony was relevant because high levels of methamphetamine had been found in Mr. Higginbotham’s system at the time of his death.

Although Mr. Richmond was not aware of Mr. Higginbotham’s methamphetamine consumption at the time of the assault, the defense theorized that Mr. Predmore’s testimony was relevant to corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the night of the attack. However, the trial court excluded Mr. Predmore’s testimony as speculative and irrelevant. The jury convicted Mr. Richmond of second degree murder. He appealed.

ISSUE

On appeal, the issue was whether the trial court violated Mr. Richmond’s constitutional right to present a defense by excluding his expert’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

“Mr. Richmond argues the trial court violated his constitutional right to present a
defense by excluding expert testimony,” said the Court of Appeals. “We disagree.”

The Court of Appeals reasoned that Evidence Rule 702 governs the admissibility of expert testimony. “Under this rule, a witness may provide expert opinion testimony to the jury if (1) the witness is qualified as an expert, and (2) the witness’s testimony would help the trier of fact,” said the Court of Appeals.

“Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. A proposed expert’s testimony is not helpful or relevant if it is based on speculation.”

Furthermore, the Court of Appeals reasoned that the trial court properly excluded Mr. Predmore’s proposed testimony regarding the effects of methamphetamine because it was not shown to be potentially helpful to the jury. “Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to assess how Mr. Higginbotham’s body may have processed methamphetamine,” said the Court of Appeals. It further reasoned that according to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of effects. Increased aggression is only one possibility. “It is therefore nothing but speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s claim of victim aggression,” said the Court of Appeals. “The evidence was properly excluded, consistent with long standing case law.”

With that, the Court of Appeals upheld the conviction.

Please contact my office if you, a friend or family member are charged with a crime after responding in self-defense. Hiring competent and experienced counsel is the first step toward receiving a just resolution.

Gun Safes Are Searchable

Image result for police gun safe

In State v. Witkowski, the WA Court of Appeals held that a police search warrant for firearms located in a residence allows officers to search a locked gun safe.

BACKGROUND FACTS

On October 27, 2015, Deputy Martin Zurfluh obtained a search warrant to search the Respondents’ property, including their residence, for evidence of possession of stolen property and utility theft. The search warrant was limited to a stolen power meter and its accessories. An arrest warrant for Witkowski was also issued.

On October 29, officers executed the search and arrest warrants. After this search, Deputy Zurfluh requested an addendum to the search warrant. In his affidavit, Deputy Zurfluh explained that after entering the Respondents’ residence, police found drug paraphernalia, ammunition, one locked gun safe, one unlocked gun safe, a rifle case, and surveillance cameras. Deputy Zurfluh knew that the Respondents were felons and were prohibited from possessing firearms or ammunition.

The search warrant addendum authorized police to search at the Respondents’ street address for evidence of unlawful possession of a firearm, identity theft, unlawful possession of a controlled substance, and unlawful use of drug paraphernalia. The warrant addendum defined the area to be searched for this evidence as the main residence, a shed, and any vehicles and outbuildings at the street address.

The addendum authorized the seizure of evidence including,

  1. firearms, firearms parts, and accessories, including but not limited to rifles, shotguns, handguns, ammunition, scopes, cases, cleaning kits, and holsters
  2. Surveillance Systems used or intended to be used in the furtherance of any of the above listed crimes.
  3. Any item used as a container for #1.

Notably, the addendum did not identify either of the gun safes as items to be seized.

When executing the warrant addendum, officers opened the locked gun safe. They found 11 loaded rifles and shotguns with their serial numbers filed off, a handgun, a police scanner, a large quantity of cash, ammunition, and cameras.

After the search, the State charged Respondents with numerous counts including first degree unlawful possession of a firearm. Witkowski was additionally charged with seven counts of possession of a stolen firearm.

The superior court suppressed the evidence found inside the gun safes under the Fourth Amendment. It ruled that the addendum to the warrant did not include the gun safes or containers for firearms and that gun safes are not “personal effects,” so that the search of the safes did not fall within the scope of the search warrant.

The superior court later denied the State’s motions for reconsideration. The State filed motions for discretionary review to the Court of Appeals.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that a lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.

“Here, the warrant addendum listed the objects of the search as including firearms and firearm accessories,” said the Court of Appeals.  “And Deputy Zurfluh testified that he suspected the close-to refrigerator-sized, locked safe contained firearms because he had found ammunition in the home.” The Court emphasized that Deputy Zurfluh also testified that in his experience, a tall, upright safe would be used to store guns. “Under the rule expressed in United State v. Ross, because one object of the search was “firearms,” the premises search warrant addendum authorized the search of the locked gun safe as an area in which the object of the search was likely to be found.”

Additionally, the Court of Appeals emphasized that numerous Washington cases have also expressed the Fourth Amendment rule that a premises warrant authorizes a search of containers in a residence that could reasonably contain the object of the search.

“In sum, federal and state precedent applying the Fourth Amendment show that when police execute a premises warrant, they are authorized to search locked containers where the objects of the search are likely to be found. Thus, the superior court here erred under the Fourth Amendment when it suppressed the evidence in the locked gun safe as exceeding the scope of the warrant addendum.”

With that, the Court of Appeals reversed the Superior Court’s suppression of the evidence and remanded back to the trial court for further proceedings.

Please contact my office if you, a friend or family member face criminal charges involving searches of persons, vehicles and property. Hiring competent criminal defense counsel is the first step toward getting charges reduced or dismissed.

DV & Cohabitating Parties

Image result for dv and parents with kids

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.