Category Archives: felony

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.

 

Marijuana & Necessity

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In State v. Ruelas, the WA Court of Appeals held that a defendant in possession of more than 40 grams of marijuana who asserts a necessity defense must present a medical expert witness to support the defense.

BACKGROUND FACTS

On November 10, 2015, Sergeant Garcia stopped Mr. Ruelas for speeding. Mr. Ruelas rolled down his window and gave Sergeant Garcia his license and registration. Sergeant Garcia smelled marijuana coming from the pickup truck. He asked Mr. Ruelas about the smell and asked him to roll down his rear window. Mr. Ruelas complied, and Sergeant Garcia saw a large garbage bag containing marijuana. Sergeant Garcia then arrested Mr. Ruelas for felony possession of marijuana.

Mr. Ruelas said he had a medical marijuana card but did not provide one. Sergeant Garcia then read Mr. Ruelas his Miranda rights.

On February 26, 2016, the State charged Mr. Ruelas with one count of possession of marijuana over 40 grams.

On June 13, 2016, the trial court held a CrR 3.5 hearing. The court found that Mr. Ruelas’s initial pre-Miranda statement was the result of a routine processing question and that his additional statements were made either spontaneously and not in response to a question likely to produce an incriminating response. The court denied Mr. Ruelas’s suppression motion. After the court’s ruling, Mr. Ruelas requested a continuance to find an expert witness.

After two more continuances, on October 18, 2016, Mr. Ruelas filed his final witness list. However, the list did not include a medical expert.

On October 25, 2016, trial began. The court addressed motions in limine and questioned Mr. Ruelas about his defense of medical necessity. Mr. Ruelas explained that he was asserting the common law defense of medical necessity, not the statutory defense under the Washington State Medical Use of Cannabis Act. The State objected to the defense on the basis that Mr. Ruelas could not lay a proper foundation without having a medical expert testify. The court agreed, and did not allow testimony from Mr. Ruelas’s expert.

The trial resumed, closing arguments were given, and the jury found Mr. Ruelas guilty. He appealed.

COURT’S ANALYSIS & DISCUSSION

The WA Court of Appeals found that the Necessity defense required medical testimony. It reasoned that a defendant asserting the necessity defense must prove four elements by a preponderance of the evidence. The four elements are: (1) the defendant reasonably believed the commission of the crime was necessary to avoid or minimize the harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative was available that is as effective as marijuana.

Here, the Court of Appeals reasoned that the defendant was required to show corroborating medical evidence that no other legal drugs were as effective in minimizing the effects of the disease. Furthermore, it reasoned that it made sense that the expert could testify to knowing the qualities of other drugs, not just the personal preference of the defendant.

The Court of Appeals also disagreed with Mr. Ruelas’s arguments that the trial court wrongfully disallowed Mr. Ruelas’s expert witness from testifying. In fact, the Court actually addressed whether Mr. Ruelas himself should be sanctioned for violating the discovery rule that parties must disclose their witnesses well before trial begins:

“A trial court may sanction a criminal defendant under CrR 4.7(h)(7)(i) for failing to comply with discovery deadlines by excluding the testimony of a defense witness.”

Here, however, the trial court did not sanction Mr. Ruelas’s for the late disclosure of his expert witness.

“Our review of the record convinces us that Mr. Ruelas did not act willfully or in bad faith,” said the Court of Appeals. “Mr. Ruelas explained that it was difficult to obtain his mother’s medical records, which Dr. Carter needed to review. Mr. Ruelas also expressed difficulty in communicating with Dr. Carter, who he described as very busy.”

Nevertheless, the Court of Appeals also rejected Ruelas’s arguments that the trial court abused its discretion when it precluded Ruelas’s expert witness from testifying. “Mr. Ruelas does not cite any authority that holds that a trial court abuses its discretion when it precludes an expert disclosed during trial from testifying,” said the Court of Appeals. “We presume there is no authority.”

Car Stop & Purse Search

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In State v. Lee, the WA Court of Appeals held that a passenger’s consent to a search of her purse was not spoiled by police conduct during the traffic stop.

BACKGROUND FACTS

Defendant Ms. Lee was the front seat passenger in a car driven by Mr. Peterman. Detective Tilleson initiated a traffic stop for two traffic infractions. Detective Tilleson asked Peterman for his identification, learned his license was suspended, and arrested him for first degree driving while license suspended or revoked. Peterman consented to a search of the car.

Detective Tilleson told Ms. Lee to step out to facilitate his search of the car. She left her purse inside the car. Detective Tilleson ran Lee’s identification information to determine if she had a driver’s license so she could drive the car if it was not impounded. He learned Lee had a valid driver’s license and a conviction for possession of a controlled substance.

Lee began to pace back and forth near the car. At some point, Detective Fryberg directed Lee to sit on a nearby curb. During a conversation, Lee told Detective Tilleson the purse in the car was hers. Detective Tilleson asked Lee for permission to search her purse, telling her that he was asking “due to her prior drug conviction.” He also gave Lee warnings pursuant to State v. Ferrier that she was not obligated to consent and that she could revoke consent or limit the scope of the search at any time.

Lee consented to the search. When Detective Tilleson asked Lee if there was anything in her purse he should be concerned about, she said there was some heroin inside. Detectives found heroin and methamphetamine in her purse, advised Lee of her Miranda rights, and arrested her for possession of a controlled substance with intent to manufacture or deliver.

Before trial, Lee moved to suppress the evidence obtained from the search of her purse. The trial court denied Lee’s motion to suppress the results of the search of her purse. The court found “the testimony of the detectives involved was more credible than the defendant’s testimony. The trial court also determined that all of Lee’s statements were voluntary and that none were coerced. Finally, the court concluded that Lee validly consented to a search of her purse.

At the bench trial, the judge found Lee guilty as charged. Lee appealed on arguments that she did not validly consent to the search of her purse because the detectives unlawfully seized her.

LEGAL ISSUE

Whether police exceeded the reasonable scope and duration of the traffic stop by asking Ms. Lee’s consent to search her purse while mentioning her prior drug conviction.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals stated that both the Fourth Amendment of the United States Constitution and article 1, section 7 of the Washington Constitution prohibit a warrantless search or seizure unless an exception applies. Voluntary consent is an exception to the warrant requirement.

“But an otherwise voluntary consent may be vitiated by an unlawful seizure,” reasoned the court of Appeals. “When analyzing a passenger’s consent to search the purse she left in
the car, we start with the traffic stop that led to the search.”

Here, the Court said the Fourth Amendment and WA Constitution both recognize an
investigative stop exception to the warrant requirement as set forth in the landmark U.S. Supreme Court case, Terry v. Ohio. “The rationale of Terry applies by analogy to traffic stops applies by analogy to traffic stops,” said the Court of Appeals.

The Court of Appeals explained that the proper scope of a Terry stop depends on the purpose of the stop, the amount of physical intrusion upon the suspect’s liberty, and the length of time the suspect is detained. A lawful Terry stop is limited in scope and duration to fulfilling the investigative purpose of the stop. “Once that purpose is fulfilled, the stop must end,” reasoned the Court.

Ultimately, the Court found that once the arrested driver consented to a search of the vehicle, it was not unreasonable for the detective to ask the passenger – here, Ms. Lee – if she consented to a search of the purse she left in the car. The detectives legitimately checked Lee’s identification to determine whether she was a licensed driver and could drive the car from the scene following Peterson’s arrest. And the search of the purse occurred roughly 18 minutes after the traffic stop began.

“We conclude Lee’s voluntary consent to search her purse was not vitiated by police conduct at the traffic stop. Specifically, under the totality of the circumstances, the police did not exceed the reasonable scope and duration of the traffic stop.”

In addition, the Court reasoned that the mention of Lee’s prior drug conviction must also be considered as part of the totality of the circumstances. “Here, there was a single mention of the conviction in passing,” said the Court. “There was no physical intrusion upon Lee.”

With that, the Court of Appeals concluded that the police did not exceed the reasonable scope or duration of the traffic stop under the totality of the circumstances. Therefore, Lee failed to establish that her voluntary consent to search her purse was vitiated by police conduct. Her conviction was affirmed.

Please contact my office if you, a friend or family member are charged with a crime involving a questionable search and seizure by the police. Hiring competent and experienced defense counsel is the first and best step toward justice.

Proposed Legislation Makes It Easier to Remove Criminal Convictions.

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Excellent article by Lester Black of the Stranger reports that a proposed state law, HB 1041, would make it easier for people to remove misdemeanors and felonies from their criminal record.
Although certain convictions are already eligible to be vacated, or removed from someone’s record, but this proposed law would greatly expedite the vacation process and expand the types of crimes that are eligible for vacation. An explanation of the bill describes which types of convictions are covered.
Rep. Drew Hansen, a Democrat from Bainbridge who is sponsoring the legislation, said he is supporting the bill so old convictions don’t burden people long after they’ve paid their debts to society.

“This bill makes it easier for people to clear their record when people have truly turned their lives around.” ~Representative Drew Hansen

Also, Rep. Morgan Irwin, a Republican from Enumclaw co-sponsoring the legislation, said the proposed law would give an incentive for people to stay out of the criminal justice system.

“This is about giving people that have… made that mistake a reason to not make another one,” Irwin said at a recent legislative hearing.

According to the Stranger staff reporter Lester Black, the bill would not automatically clear anyone’s criminal record. People would still need to get a judge’s approval for each conviction to be vacated, but the bill would make it easier for people to go through the process and expand the types of criminal convictions that are eligible to be removed from people’s records. Some serious crimes such as second-degree burglary and assault would now be eligible under the proposed law. There is also no official estimate for how many people could take advantage of vacating convictions, according to a financial statement attached to the bill.

King County Prosecuting Attorney Dan Satterberg also spoke in favor of the legislation, noting that the “collateral consequences” a person experiences from a conviction have nothing to do with public safety. Satterberg emphasized that people would still need to convince a judge to vacate their record.

“This is a reward for highly motivated people,” Satterberg said. “We shouldn’t stand in their way, we should encourage that.”

My opinion? This legislation is a step in the right direction. Convictions are crippling. This type of data limits career opportunities, prevents housing, prevents travel and may be used as impeachment evidence should the convicted offender testify in a court hearing.

Firearms & Terry Stops

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In State v. Tarango, the WA Court of Appeals held that the presence of a firearm in public and the presence of an individual openly carrying a handgun in a “high-risk setting,” are insufficient, standing alone, to support an investigatory stop.

BACKGROUND FACTS

At around 2:00 in the afternoon on a winter day in 2016, Mr. Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who later turned out to be the defendant Mr. Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. The first officer to respond saw a vehicle meeting Mr. Matthews’s description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm—the visible firearm turned out to be a black semiautomatic—a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

The State charged Mr. Tarango, who had prior felony convictions, with two counts of first degree unlawful possession of a firearm. Because Mr. Tarango had recently failed to report to his community custody officer as ordered, he was also charged with Escape from community custody.

Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity. However, the trial court denied the suppression motion. Later, at trial, the jury found Mr. Tarango guilty as charged. He appealed.

ISSUE

The issue on appeal was whether a reliable informant’s tip that Mr. Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that Mr. Tarango’s motion to suppress should have been granted because officers lacked reasonable suspicion that Mr. Tarango had engaged in or was about to engage in criminal activity.

The Court reasoned that warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies.

“A Terry investigative stop is a well-established exception,” said the Court. “The purpose of a Terry stop is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation . . . To conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.”

Additionally, the Court of Appeals reasoned that in evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, it reminded that Washington is an “open carry” state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons.

“Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.”

Here, because the officers conducting the Terry stop of the Suburban had no information that Mr. Tarango had engaged in or was about to engage in criminal activity, the officers lacked reasonable suspicion.

Consequently, the Court of Appeals ruled that Tarango’s motion to suppress should have been granted. The Court also reversed and dismissed his firearm possession convictions.

Please contact my office if, a friend or family member face criminal charges. Similar to the excellent defense attorney in this case, experienced attorneys routinely research, file and argue motions to suppress evidence when it is gained by unlawful search and seizure and in violation a defendant’s Constitutional rights.

Words Alone

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In State v. Kee, the WA Court of Appeals held that words alone are not sufficient to make a defendant the primary aggressor in an altercation.

BACKGROUND FACTS

The State charged Ms. Kee with the second degree assault of Mr. Ostrander based on an
incident on August 1, 2016. Kee punched Ostrander in the face and broke his nose.

Apparently, they exchanged words when Kee was walking down the street playing her radio loud. Eventually, they engaged in mutual combat by hitting each other back and forth several times.  Although Ostrander struck Kee in the face several times, Kee’s final blow to Ostrander broke Ostrander’s nose.

The case proceeded to a jury trial. Kee’s defense was self-defense.

At trial, the State proposed a first aggressor jury instruction. Kee objected to the instruction, arguing that it was not supported by the evidence presented at trial. The trial court disagreed and gave the following first aggressor jury instruction:

“No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that [the] defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.”

The jury found Kee guilty of second degree assault. She appealed on arguments that the trial court erred because its jury instruction denied her the ability to argue her theory of self-defense. Specifically, Kee argued there was insufficient evidence to justify a first aggressor jury instruction because words alone do not constitute sufficient provocation.

COURT’S ANALYSIS & CONCLUSION

Ultimately, the Court of Appeals agreed with Kee. It held that although sufficient evidence supported the first aggressor jury instruction, the trial court nevertheless erred in giving the jury instruction without also instructing the jury that words alone are not sufficient to make a defendant the first aggressor.

The Court reasoned that generally, a defendant cannot invoke a self-defense claim when she is the first aggressor and provokes an altercation. Also, a first aggressor jury instruction is appropriate when there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense.

Nevertheless, the Court of Appeals also reasoned that although there was evidence of a physical altercation,  their interaction started with a verbal altercation. Therefore, the evidence supported a finding that Kee’s words, rather than her physical acts, first provoked the physical altercation.

“By failing to instruct the jury that words alone are insufficient provocation for purposes of
the first aggressor jury instruction, the trial court did not ensure that the relevant self-defense legal standards were manifestly apparent to the average juror,” said the Court of Appeals. “Moreover, the trial court’s instructions affected Kee’s ability to argue that she acted in self-defense.”

Accordingly, the Court of Appeals reversed Kee’s conviction.

My opinion? Good decision. I’ve conducted many jury trials involving defendants who acted in self-defense to assault allegations. Under the law, self-defense is an affirmative defense to assault charges. In my experience, prosecutors combat a defendant’s self-defense theories by trying to prove the defendant was the primary aggressors. If successful, then the jury cannot consider whether the defendant acted in self-defense. The “aggressor “juror instruction exists to  nullify, circumvent and/or defeat a defendant’s self-defense claim.

State v. Kee is pertinent to the issue of whether words alone exchanged between two participants who willingly fight each other – whether words alone – allow the jury to decide if the defendant was the primary aggressor. Of course not! By themselves, words are not enough, and the Court of Appeals agreed. Indeed, words can be quite motivational for people to engage in mutual combat similar to the parties in State v. Kee. And by the way, mutual combat is lawful because Washington imposes no duty for either party to retreat from a fight.

Please contact my office if you, a friend or family member face criminal charges of assault. It’s important to hire an experienced defense attorney who knows the law, is aware of possible defenses and is willing to take the case to trial.

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.

Shackled in Court

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In State v. Lundstrom, the WA Court of Appeals held that a trial court’s failure to state why a jailed defendant must wear shackles, handcuffs and other restraints to court violates a defendant’s due process rights.

BACKGROUND FACTS

The State charged Lundstrom with two counts of unlawful possession of a controlled
substance. At a pretrial hearing, Lundstrom appeared in restraints. Before the proceeding ended, defense counsel took exception to Mr. Lundstrom appearing in court with 5-point restraint shackles.

The trial court did not respond to defense counsel’s statement or concerns.

Lundstrom subsequently filed a motion objecting to the restraints and requesting removal of the shackles. The motion included a certified statement from defense counsel, which stated that he had made a public disclosure request with the Clallam County Sheriff’s Office (CCSO) for their policies and discovered that CCSO policy 15.106.1 required all inmates to be brought to court in full restraints (waist chain, cuffs, and leg irons) for their first appearance. There is no record showing whether Lundstrom noted the motion for hearing before the trial court, whether the trial court held a hearing on the motion, or whether the trial court ruled on the motion. Ultimately, however, Lundstrom pleaded guilty to two counts of unlawful possession of a controlled substance.

On appeal, Lundstrom argued that his pretrial restraint violated his due process rights because the trial court failed to make an individualized determination on the necessity of the restraints.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals agreed with Mr. Lundstrom.

It reasoned that under the  WA Constitution, the accused shall have the right to appear and defend in person. That right includes the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Additionally, under State v. Damon, the Washington Supreme Court has long recognized that a prisoner is entitled to be brought into the presence of the court free from restraints.

“Restraints are disfavored because they may interfere with important constitutional rights, including the presumption of innocence, privilege of testifying in one’s own behalf, and right to consult with counsel during trial.”

“But a defendant’s right to be in court free from restraints is not limitless,” said the Court of Appeals. “The right may yield to courtroom safety, security, and decorum. A defendant may be restrained if necessary to prevent injury, disorderly conduct, or escape.”

Furthermore, the trial court abused its discretion and committed constitutional error when it failed to address the issue of Lundstrom’s pretrial restraint. By failing to do so and allowing Lundstrom to be restrained, the trial court failed to exercise its discretion and effectively deferred the decision to the jail’s policy. As a result, the trial court abused its discretion and committed constitutional error by failing to make an individualized inquiry into the necessity for pretrial restraints when Lundstrom took exception to the use of pretrial restraints. Therefore, Lundstrom’s due process rights were violated by his pretrial restraints.

Interestingly, Lundstrom was not trying to overturn his conviction or seek any other remedy due to the violation of his due process rights. He only wanted the Court of Appeals to address his claim as a matter of continuing and substantial public interest.

“Generally, we do not consider claims that are moot or present only abstract questions,” said the Court of Appeals. However, we have the discretion to decide an issue if the question is one of continuing and substantial public interest.”

My opinion? Good decision. It’s harsh to see defendants in handcuffs and chains. Indeed, it’s unconstitutional. And for the most part, shackling defendants at court hearings is unnecessary unless there’s reason to believe the defendant may escape or harm others.

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

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

Image result for rape kit

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.


Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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