Category Archives: felony

Dealing in Depictions

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In State v. Gray, the WA Supreme Court decided that the Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct statute allows the State to prosecute a minor for taking and distributing a sexually explicit photo of himself.
BACKGROUND FACTS
When he was 17 years old, Eric D. Gray electronically sent an unsolicited picture of his erect penis to an adult woman. The woman contacted the police, and Gray was charged with and convicted of one count of Second Degree Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct under ROW 9.68A.050. It also charged him with one count of Telephone Harassment under RCW 9.61.230. Gray moved to dismiss both charges for insufficient evidence, which the trial court denied.
In a stipulated facts trial, the court found Gray guilty of the second degree dealing in depictions of a minor charge. The State agreed to dismiss the telephone harassment charge and chose not to charge him with two counts of misdemeanor indecent exposure stemming from an unrelated incident. He was sentenced to 150 hours of community service, 30 days of confinement, and fees, before being released with credit for time served. He was ordered to register as a sex offender.
Mr. Gray appealed to Division Three of the Court of Appeals, which affirmed his adjudication. He appealed again, this time to the Washington Supreme Court, claiming the plain language of the statute does not anticipate minors who take and transmit sexually explicit images of themselves. The American Civil Liberties Union of Washington, the Juvenile Law Center, Columbia Legal Services, and TeamChild subsequently filed a joint brief as amicus curiae, or “friend of the court”.
ISSUES
1. Does RCW 9.68A.050 allow the State to prosecute a minor for taking and distributing a sexually explicit photo of himself?
2. Is RCW 9.68A.050 impermissibly overbroad or vague in violation of the federal or state constitutions?
COURT’S ANALYSIS AND CONCLUSIONS
The WA Supreme Court reasoned that the plain language of the statute prohibits transmitting sexually explicit images of a minor even if the minor himself sent it:
“Under this statute, the State properly charged Gray for his actions. When he was 17, Gray took a photo of his erect penis and sent it, unsolicited, to another person. Gray is a “natural person” and therefore a person for purposes of the statute. He was also under the age of 18, making him a minor under the statute as well. He stated he was attracted to T.R., and when he sent the picture he included the phrase “Do u like it, babe?,” indicating an attempt to arouse the recipient. The picture he transmitted was, therefore, a visual depiction of a minor engaged in sexually explicit conduct because it was a picture of a minor’s genitals designed to sexually stimulate the viewer. This falls squarely within the statute’s plain meaning.”
The Court also reasoned that the statute here is unambiguous. A “person” is any person, including a minor. “Images of a ‘minor’ are images of any minor,” reasoned the Court. It elaborated that nothing in the statute indicates that the “person” and the “minor” are necessarily different entities. Therefore, the photographer or distributor may also be the minor in the photograph. “Because of this, Gray was properly charged with taking and disseminating sexually explicit images of a minor,” said the Court.
Furthermore, the Court reasoned that the Legislature’s findings support the Court’s plain reading of the statute. “The legislature intended to destroy the blight of child pornography everywhere, from production of the images to commercial gain,” said the Court. “Because the statute was intended to curtail production of child pornography at all levels in the distribution chain, the statute prohibits Gray’s actions.”
Finally, the Court reasoned that the statute is neither unconstitutionally overbroad nor unconstitutionally vague. First, it does not invite arbitrary and discriminatory enforcement. Despite Gray’s arguments, the Court reasoned that the State is vested with great discretion in determining how and when to file criminal charges. Here, Gray presents no evidence the State made the choice to charge Gray for an arbitrary or discriminatory purpose.
Second, the wording of the statute allows a reasonable person to understand what conduct is prohibited. “It states that ‘a person’ will be guilty if they transmit sexually explicit images of ‘a minor,’ said the Court. “On its face, this includes any person, even a minor taking a picture of himself. Our responsibility is to interpret the law, not to write it, and here the law is clear.”
With that, the WA Supreme Court voted 6-3 to affirm the Court of Appeals and upheld Gray’s conviction.
THE DISSENT
Justice McCloud authored the dissenting opinion. He reasoned that RCW 9.68A.050 is designed to tackle a significant problem: trafficking in sexual depictions of children. Furthermore, the statute tackles that problem with severe criminal penalties for the traffickers but protection for the depicted children.

“There is a long-standing and well-accepted rule that when a legislature enacts a criminal law to protect such a specific class, we cannot interpret that law to permit prosecution (and potential revictimization) of members of that protected class for their own exploitation—unless the legislature explicitly says so. The legislature did not say so here. Hence, the general rule applies,” said Justice McCloud. “Gray, the depicted minor, cannot be prosecuted under this statute for disseminating pictures of himself.”

Self-Defense

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In State v. Vela, the WA Court of Appeals held that the defendant’s Sixth Amendment right to present evidence was violated when the trial court excluded testimony regarding why the defendant, who claimed self-defense, feared the victim.
BACKGROUND FACTS
On February 20, 2014, Duarte Vela shot and killed Antonio Menchaca in Okanogan County. The question at trial was why Duarte Vela shot and killed Menchaca.

Apparently, Menchaca was the ex-brother-in-law of Duarte. Vela and his family were living in Okanogan County. Apparently, Vela and his family were afraid of Menchaca, who just finished serving a prison sentence in California. Also, Vela had already contacted Menchaca when Menchaca returned from California and told Menchaca to stay away from his family.

On the date of the incident, Vela’s wife called Vela and said she thought she saw Menchaca driving by their house. Vela went home, retrieved a firearm and then was heading to Brewster to pick up a child, when he saw Menchaca parked along the road on old Hwy 97 near the Chiliwist Road. Vela stopped and confronted Menchaca. According to a witness at the scene, Vela then pulled out a pistol and shot the Menchaca two or three times. Menchaca died at the scene from the gunshots.

Vela then drove back to his home, put the gun away and called 911 to report the shooting. Vela told Deputies he was at his home and would be waiting for them. Deputies arrived and picked up Vela without incident. Vela was transported to the Okanogan County Jail and booked for various firearm offenses and Murder in the Second Degree.

The trial occurred in January 2015. Prior to jury selection, the State moved in limine to exclude evidence of Menchaca’s prior bad acts. Vela responded that he sought to admit certain prior bad acts of Menchaca known to him to establish the reasonableness of his fear of Menchaca. Specifically, Vela wanted to introduce testimony that (1) Menchaca threatened to return to Okanogan and kill Duarte Vela’s after being released from prison, (2) Menchaca kidnapped Vela’s younger sister in 2007 when she was just 15 years old, (3)
Menchaca had repeatedly battered Vela’s sister throughout their marriage, and that she had told Vela about this, (4) Vela’s wife witnessed the domestic violence abuse from Manchaca to Vela’s sister (5) Vela was told by his family members about Menchaca’s threat to kill his family and Menchaca’s domestic violence against Blanca, (6) Vela feared Menchaca being around his family, (7) Vela believed he needed to arm himself when he went to his sister’s apartment to confront Menchaca, (8) Vela’s wife told him the SUV driver  Martinez and Menchaca gave her a threatening look when the SUV first parked in or near the pullout, (9) why Vela followed the SUV the first time, (10) why Vela believed there were two people in the car when he followed the SUV the first time, (11) Martinez’s statement to him that he was alone in the SUV, (12) what he felt when he saw Martinez later drive by with Menchaca in the passenger seat, (13) why Vela had an elevated fear as he went after the SUV for the second time, (14) Vela’s wife being upset when he returned and explained that Menchaca was not in the SUV, (15) Vela’s belief that something was wrong when Martinez and Menchaca both got out of the car and walked toward him, (16) what Vela feared Menchaca and Martinez might do as they walked toward him, and (17) the degree of bodily harm Vela feared just before he shot Menchaca, as Menchaca became upset and reached into his pocket.

However, the trial court excluded the proferred evidence on the basis that the testimony was irrelevant, too remote in time and ultimately inadmissible.

Also, toward the end of trial, Duarte Vela requested a “no duty to retreat” jury instruction.
However, the trial court denied the instruction. The jury returned a verdict of guilty on all counts. Vela appealed.
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals reasoned that right to present testimony in one’s defense is guaranteed by both the United States and the Washington Constitution. Here, Vela argued the trial court’s evidentiary rulings violated his right to present a defense. He principally argues the trial court committed reversible error when it excluded evidence relating to: (1) Menchaca’s prison threat, (2) Menchaca’s years of domestic abuse against Blanca, (3) Menchaca’s abduction of Maricruz, (4) why he feared Menchaca, and (5) the type of bodily harm he feared just before he shot Menchaca.
The Court reasoned that in considering a claim of self-defense, the jury must take into account all 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 of Appeals.
Furthermore, the Court reasoned that evidence of a victim’s propensity toward violence that is known by the defendant is relevant to a claim of self-defense because such testimony tends to show the state of mind of the defendant and to indicate whether he, at that time, had reason to fear bodily harm. Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.
“Here, Vela sought to introduce Menchaca’ s threat to kill Vela’s family and Menchaca’s past domestic violence not to prove they were true, but for the very relevant purpose of showing the reasonableness of his fear of Menchaca,” reasoned the Court of Appeals. “The evidence, therefore, was not hearsay. To the extent the trial court excluded this and
several miscellaneous statements offered by Duarte Vela to show his state of mind, the
trial court erred,” said the Court.
The Court also said that the reasonableness of Vela’s fear of Menchaca is one of two components of his self-defense claim, the other component being the degree of bodily harm he feared just before he shot Menchaca:
“Menchaca’s past threat to kill Vela’s family was central to Duarte Vela’s ability to explain the reasonableness of his fear. Unless the evidence was inadmissible under the State’s other arguments, the trial court’s exclusion of this evidence deprived Vela of the ability to testify to his versions of the incident.”
Furthermore, the Court of Appeals reasoned that the trial court’s evidentiary rulings precluded Vela from presenting a legal defense to the killing that he admitted to and omitted evidence that would have created a reasonable doubt that did not otherwise exist. “For this reason, the trial court’s evidentiary rulings violated Duarte Vela’s Sixth Amendment right to present a defense,” said the Court of Appeals.
Next, the Court of Appeals addressed whether the trail court erred in refusing to allow Vela the “No Duty to Retreat” jury instruction. “Because the facts would not support retreat as an option to someone pulling a gun at close range and because the State did not argue that Vela could have retreated, the trial court did not err in refusing the instruction.”
CONCLUSION
Although the Court of Appeals denied Vela’s argument of instructional error, it concluded the trial court’s evidentiary rulings denied his Sixth Amendment right to present
a defense. It therefore reversed and remanded for a new trial.
My opinion? Good decision. It’s wrong to hobble defendants of their right to self-defense when the defense is justified. For more on this topic, please read my Legal Guide titled, “Self-Defense.”  And don’t hesitate to call the Law Office of Alexander Ransom if you have friends or family accused of crimes involving self-defense.

Extortion & Promises

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In State v. McClure, the WA Court of Appeals held that extortion was satisfied by evidence that the defendant attempted to obtain valuable intangible property – a promise from the victim that he would not pursue criminal charges or a civil remedy against the defendant for the damaged property.

BACKGROUND FACTS

In late 2013, Williams and McClure entered into an agreement under which McClure would reside in a double wide trailer Williams owned that needed repairs. McClure would perform the repairs. In return, he would live in the trailer rent free for one year and then he would start paying rent. After a year, Williams contacted McClure and told him that if he did not pay rent, Williams would evict him.

McClure responded by threatening to destroy the trailer if Williams evicted him.

McClure did not pay his rent and Williams began the eviction process. Williams visited
the trailer on the day McClure was to be evicted and discovered that the sliding glass door, the front door, the kitchen cabinets, and the wood stove had been removed. In addition, pipes were ripped out of the ceiling and electrical lines had been cut. Williams contacted the sheriff.

A few days later, Williams returned to the trailer and observed people on the property who were removing siding, electrical wire, plumbing, appliances, and fixtures from the trailer and portions of his shed. A deputy sheriff informed Williams that someone had taken out a Craigslist ad inviting people onto the property to take what they wanted. Williams sent a text message to McClure asking him to remove the ad. McClure texted a response:

“I will pull the ads if you take a letter . . . signed and notarized by both you and Lisa (Williams’ wife) that will not allow any charges to be placed against me or my wife for
anything related to the property. I don’t need the hassle. I will also not have the signs placed that I made for the same purpose.” After Williams again asked McClure to remove the ad, McClure texted, “A simple letter will take you 15 minutes and it will be done.”

The State charged McClure with first degree extortion and first degree malicious
mischief. A jury convicted him of both charges.

LEGAL ISSUE

McClure appeals only his first degree extortion conviction on the issue of whether that “promise” sought by the defendant  constituted valuable intangible “property” supporting an extortion conviction or merely involved coercion under RCW 9A.36.070 – Williams abstaining from conduct that he had the legal right to engage in.

ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under RCW 9A.56.120(1), a person is guilty of first degree extortion if that person commits “extortion” by means of specific types of threats. “Extortion” means “knowingly to obtain or attempt to obtain by threat property or services of the owner.” “Property” means “anything of value, whether tangible or intangible, real or personal.”

It further reasoned that McClure clearly was seeking a promise to not pursue criminal charges for a crime that involved financial loss to Williams – the cost of repairing damaged property. As a victim of a crime under RCW 9.94A.753(5), Williams would have the ability to receive restitution in a criminal proceeding for the property damage McClure caused.

“This ability to receive restitution for property damage had value to Williams,” reasoned the Court of Appeals.

Furthermore, McClure also arguably was seeking a promise not to pursue any civil remedy for the property damage McClure caused. That is how Williams interpreted the threat. He testified that McClure demanded Williams’ agreement “not to hold me responsible or press any charges for the damage that was done to your property.”

Finally, the Court of Appeals reasoned that this ability to hold McClure responsible for the property damage in a civil lawsuit had value to Williams:

“A reasonable jury could have inferred from the evidence that McClure was attempting to obtain something intangible that had value – Williams’ promise not to pursue compensation for the property damage that McClure caused.”

Accordingly, the Court of Appeals held that the State presented sufficient evidence to support McClure’s conviction for first degree extortion.

“Furtive Movements”

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In State v. Weyand, the WA Supreme Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. Walking quickly while looking up and down the street at 2:40 a.m. is an innocuous act, which cannot justify intruding into people’s private affairs.

BACKGROUND FACTS

On December 22, 2012, at 2:40 in the morning, Corporal Bryce Henry saw a car parked near 95 Cullum Avenue in Richland, Washington, that had not been there 20 minutes prior. The area is known for extensive drug history. Corporal Henry did not recognize the car and ran the license plate through an I/LEADS (Intergraph Law Enforcement Automated System) database. However, that license plate search revealed nothing of consequence about the vehicle or its registered owner.

After parking his car, Corporal Henry saw Weyand and another male leave 95 Cullum. As the men walked quickly toward the car, they looked up and down the street. The driver looked around once more before getting into the car. Weyand got into the passenger seat. Based on these observations and Corporal Henry’s knowledge of the extensive drug history at 95 Cullum, he conducted a Terry stop of the car.

After stopping Weyand, Corporal Henry observed that Weyand’s eyes were red and glassy and his pupils were constricted. Corporal Henry is a drug recognition expert and believed that Weyand was under the influence of a narcotic. When Corporal Henry ran Weyand’ s name, he discovered an outstanding warrant and arrested Weyand. Corporal Henry searched Weyand incident to that arrest and found a capped syringe. Corporal Henry advised Weyand of his Miranda3 rights, and Weyand admitted that the substance in the syringe was heroin that he had bought from a resident inside 95 Cullum.

PROCEDURAL HISTORY

The State charged Weyand with one count of unlawful possession of a controlled substance. Weyand moved to suppress all evidence and statements under Criminal Rules (CrR) 3.5 and 3.6 and to dismiss the case against him. Weyand argued that the officer did not have sufficient individualized suspicion to conduct the investigatory stop.

After the hearing, the court concluded that the seizure was a lawful investigative stop. According to the court, Corporal Henry had reasonable suspicion to believe that Weyand was involved in criminal activity. The court found Weyand’s case distinct from State v. Doughty, because in this case there was actual evidence of drug activity at, as well as known drug users frequenting, 95 Cullum.

The court additionally found that Weyand knowingly, intelligently, and voluntarily waived his Miranda rights; thus, all post-Miranda statements were admissible at trial. Weyand waived his right to a jury trial and agreed to submit the case to a stipulated facts trial. Finding that Weyand possessed a loaded syringe that contained heroin, the court found Weyand guilty of unlawful possession of a controlled substance.

Weyand appealed, and the Court of Appeals affirmed the conviction. It reasoned that the totality of the circumstances, coupled with the officer’s training and experience, showed that the officer had a reasonable, articulable suspicion that justified the stop. Those circumstances included “the long history of drug activity at 95 Cullum, the time of night, the 20 minute stop at the house, the brisk walking, and the glances up and down the street.”

LEGAL ISSUE

Whether the specific facts that led to the Terry stop would lead an objective person to form a reasonable suspicion that Weyand was engaged in criminal activity.

COURT’S ANALYSIS & CONCLUSIONS

The Court held that officers lacked sufficient facts to justify a Terry stop of the defendant. It reasoned that under the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution, an officer generally may not seize a person without a warrant. There are, however, a few carefully drawn exceptions to the warrant requirement. The State bears the burden to show that a warrantless search or seizure falls into one of the narrowly drawn exceptions.

One of these exceptions is the Terry investigative stop. The Terry exception allows an officer to briefly detain a person for questioning, without a warrant, if the officer has reasonable suspicion that the person is or is about to be engaged in criminal activity. An officer may also briefly frisk the person if the officer has reasonable safety concerns to justify the protective frisk.

The Court found that the totality of the circumstances did not justify a warrantless seizure. It reasoned that in order 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. To evaluate the reasonableness of the officer’s suspicion, Courts look at the totality of the circumstances known to the officer. The totality of circumstances includes the officer’s training and experience, the location of the stop, the conduct of the person detained, the purpose of the stop, and the amount of physical intrusion on the suspect’s liberty. The suspicion must be individualized to the person being stopped.

“Here, the trial court’s decision rested primarily on evidence that 95 Cullum was a
known drug location,” said the Court. “However, Corporal Henry did not observe current activity that would lead a reasonable observer to believe that criminal activity was taking place or about to take place in the residence.”

Furtive Movements

Also, the Court reasoned that reliance on ‘furtive movements’ as the basis for a Terry stop can be problematic. “Case law has not precisely defined such movements, and courts too often accept the label without questioning the breadth of the term.” It explained that ‘furtive movements’ are vague generalizations of what might be perceived as suspicious activity which does not provide a legal ( or factual) basis for a Terry stop.”

The Court quoted Judge Richard Posner in recognizing that “furtive movements,” standing alone, are a vague and unreliable indicator of criminality:

“Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited.”

With that, the WA Supreme Court reasoned that simply labeling a suspect’s action a “furtive movement,” without explaining how it gives rise to a reasonable and articulable suspicion, is not sufficient to justify a Terry stop. Furthermore, reasoned the Court, police cannot justify a suspicion of criminal conduct based only on a person’s location in a high crime area:

“It is beyond dispute that many members of our society live, work, and spend their waking hours in high crime areas, a description that can be applied to parts of many of our cities. That does not automatically make those individuals proper subjects for criminal investigation.”

Consequently, the WA Supreme Court reversed the Court of Appeals and hold that walking quickly and looking around, even after leaving a house with extensive drug history at 2:40 in the morning, is not enough to create a reasonable, articulable suspicion of criminal activity justifying a Terry stop.

My opinion? Excellent decision. I’m very impressed the Court addressed the term “furtive movements” and put it in perspective. Law enforcement officers regularly use this catch-phrase to describe suspicious behavior allowing them stop/search/seize people. Although officer safety is a primary concern and a very good reason to search people who are already in police custody and making “furtive movements” in the presence of officers, it cannot be a basis for stopping and searching people who are simply going about their business walking down the street. Great decision.

Join Offenses = Bad Results

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In State v. Linville, the WA Court of Appeals held that the defendant’s numerous criminal charges cannot be “joined” to a charge of leading organized crime.

BACKGROUND FACTS

Following an increase in residential burglaries in Thurston County, law enforcement
officers noticed similarities among several burglaries. Officers ultimately recovered numerous items taken during the burglaries from Linville’s home.

The State charged Linville with 1 count of leading organized crime, 35 counts of
residential burglary, 1 count of attempted residential burglary, 4 counts of first degree burglary, 3 counts of second degree burglary, 39 counts of trafficking in stolen property, 17 counts of first degree theft, 18 counts of second degree theft, 1 count of attempted second degree theft, 3 counts of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of unlawful possession of a firearm, 1 count of possession of stolen property, and 1 count of possession of a controlled substance, for a total of 138 charges with numerous deadly weapon sentencing enhancements. The State alleged that Linville was armed with a firearm during the commission of the four first degree burglaries.

At no point did Linville argue that joinder of any offenses was improper under RCW 9A.82.085.

During the jury trial, the State presented testimony from numerous co-defendants who identified Linville as the instigator and leader of the burglary scheme. The co-defendants’ testimony was corroborated by law enforcement officers and victims who described the common characteristics among the burglaries and identified stolen goods recovered from the homes of Linville and his co-defendants. The jury found Linville guilty of 137 offenses, and he was sentenced to 914 months in prison, which included 240 months for four firearm sentencing enhancements.

Linville appealed on the argument that his defense counsel gave ineffective assistance of counsel by failing to move for severance of offenses that were not part of the pattern of criminal profiteering activity from the charge of leading organized crime under RCW 9A.82.085.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court agreed with Linville. It reasoned that the Sixth Amendment guarantees the effective assistance of counsel in criminal proceedings. To show ineffective assistance of counsel, a defendant must show that (1) defense counsel’s conduct was deficient, and (2) the deficient performance resulted in prejudice. To show deficient performance, Linville must show that defense counsel’s performance fell below an objective standard of reasonableness. To show prejudice, Linville must show a reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the proceeding would have differed.

  1. Counsel Rendered Deficient Performance.

First, the Court reasoned that RCW 9A.82.085 states the following, in relevant part:

“In a criminal prosecution alleging a violation of leading organized crime, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity.”

RCW 9A.82.010(12) defines “pattern of criminal profiteering activity” as “engaging in at least three acts of criminal profiteering.” RCW 9A.82.010(4) defines “criminal profiteering” as:

“any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following: . . . .”

RCW 9A.82.010(4) then lists 46 crimes and their defining statutes. First and second degree theft, trafficking in stolen property, leading organized crime, and identity theft are included in the list. However, residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property are NOT included in the list. 

Consequently, the Court reasoned that a plain reading of the statutes made it clear that the State was barred from joining charges of residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property to Linville’s prosecution for leading organized crime.

“The unreasonable failure to research and apply relevant statutes without any tactical purpose constitutes deficient performance. Here, defense counsel’s failure to object to the State’s improper joinder of charges was unreasonable and constitutes deficient performance.”

2. Counsel’s Deficient Performance Resulted in Prejudice to the Defendant’s Case.

The Court said that in order to succeed on his claim of ineffective assistance of counsel, Linville must also show that but for his attorney’s deficient performance the outcome of the trial would have differed, and therefore the deficient performance was prejudicial.

To this end, the Court reasoned that this issue is somewhat different than the related issue of discretionary joinder or severance pursuant to CrR 4.4(b). Under CrR 4.4(b), a trial court must grant a motion to sever offenses if it determines that “severance will promote a fair determination of the defendant’s guilt or innocence of each offense.” A defendant seeking such a severance under CrR 4.4(b) must show that a trial involving all counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.

In contrast, the Court explained that RCW 9A.82.085 leaves no room for the trial court’s discretion. Under that statute, the State is barred from joining offenses other than those alleged to be part of the criminal profiteering activity in a prosecution for leading organized crime.

“Because of defense counsel’s failure to object, Linville was improperly tried for 138 total charges and convicted of 137 offenses,” said the Court. “Had counsel properly objected to the joinder, 56 of the charges, including all of the burglary charges, would have been severed, the trial would not have included convictions for those 56 improperly joined charges, and the outcome of this trial would have been different.”

The Court extrapolated the prejudicial consequences of the joinder. It explained that each of the four firearm enhancements – which resulted in a mandatory minimum sentence of 240 months – were associated with the four counts of first degree burglary. The firearm enhancements would not have been considered but for defense counsel’s deficient performance.

“The improper joinder had additional prejudicial consequences,” stated the Court. For example, by improperly joining four charges of unlawful possession of a firearm, the State was permitted to introduce evidence of Linville’s prior felony for possession of a controlled substance without a prescription. This prior conviction evidence was highly prejudicial given that the State’s theory was that Linville’s crime ring was motivated by drugs. Also, the State relied heavily on the burglaries as evidence of Linville’s guilt for leading organized crime. A jury separately considering the burglary charges would not necessarily have heard testimony of Linville’s accomplices accusing him of orchestrating a broad scheme.

Consequently, the Court held that Linville’s defense counsel rendered ineffective assistance of counsel by failing to object to the joinder of offenses in violation of RCW 9A.82.085. The Court therefore reversed Linville’s convictions and remanded them back to the trial court for separate trials.

My opinion? Good decision. A defense attorney’s failure to sever “joined” offenses into separate trials can have profoundly devastating effects. Put simply, juries are more biased against the defendant in a joinder trial versus a trial with a single charge. Consequently, they are more likely to convict on a particular charge in a joinder trial with multiple charges than in a trial on the same single charge. It’s imperative that competent defense attorneys sever counts whenever possible.

Juror Misconduct

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In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.

BACKGROUND FACTS

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:

“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”

Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.

COURT’S ANALYSIS AND CONCLUSION

This Ninth Circuit’s opinion began with the following:

“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”

Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.

“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless. If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial.  However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.

“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.” The Ninth Circuit further reasoned that under Mattox and Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.

Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it.  “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.

The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.

My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts  similar to the type described in this case.

Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair trial.

Sex Offenders & Cyberspace

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In Packingham v. North Carolina, the United State Supreme Court outlawed a North Carolina statute that makes it a felony for a registered sex offender to access a commercial social networking web site. The statute restricts lawful speech in violation of the First Amendment.

BACKGROUND FACTS

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. North Carolina has prosecuted over 1,000 people for violating this law.

The Defendant was charged after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the charges on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down the statute on First Amendment grounds, however, the North Carolina Supreme Court ended up reversing the decision.

The United States Supreme Court granted review on the issue is whether the Carolina Statute was permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

COURT’S ANALYSIS & CONCLUSION

The U.S. Supreme Court held that the statute impermissibly restricts lawful speech in violation of the First Amendment.

First, the Court reasoned that the First Amendment allows all persons have access to places where they can speak, listen, reflect, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide variety of protected First Amendment activity on any number of diverse topics. Reno v. American Civil Liberties Union, 521 U. S. 844, 870. The Court stated that the Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Indeed, the Court expressly proceeded very carefully in its analysis:

“Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

That said, the Court bluntly reasoned that the statute is not narrowly tailored to serve a significant governmental interest.  Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims.

“Two assumptions are made in resolving this case,” said the Court. First, the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

However, the Court reasoned that even with these assumptions, the North Carolina statute enacts unprecedented prohibitions in the scope of First Amendment speech it burdens:

“Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

The Court said that even convicted criminals might receive legitimate benefits from the social media for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.

Consequently, the Court reasoned that North Carolina failed to prove that its sweeping law was necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. “No case or holding of this Court has approved of a statute as broad in its reach.” With that, the U.S. Supreme Court reversed and remanded Mr. Packingham’s criminal conviction.

My opinion? Excellent decision. Granted, nobody wants anyone using the internet for predatory purposes. Nevertheless, its simply unconstitutional to totally prohibit people – even convicted sex offenders – from using the internet and social media. There’s plenty of spyware, child molestation sting operations and government internet monitoring happening on the internet to reduce the risk of predatory behavior. There’s no need for the Government to make statutes which violate Constitutional rights.

Good decision.

Pretrial Publicity & Change of Venue

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In State v. Munzanreder, the WA Court of Appeals held that the jury selection process used by the trial court – which included a written questionnaire with a number of questions regarding exposure to media reports and questioning each juror individually about media exposure – protected the defendant’s constitutional rights to an impartial venue. Therefore, the trial court did not abuse its discretion when it denied the motion to change venue.

BACKGROUND FACTS

John J. Munzanreder appealed his conviction for the first degree murder of his wife. Because of the sensational nature of the alleged crime, local media extensively covered his case from arrest through trial.

Munzanreder worked with Juan Ibanez at Valley Ford in Yakima, Washington. In
early February 2013, Ibanez approached Munzanreder and asked him for money for a
toolbox. Munzanreder agreed to give him the money ifhe helped get rid of somebody.
Munzanreder told Ibanez that he wanted help killing his wife, Cynthia, and would give
him $20,000. Ibanez said he would help, but he would not kill her.

Munzanreder gave Ibanez cash and directed him to purchase a gun. Munzanreder
told Ibanez his plan: Munzanreder and his wife would go the movies, he would shoot her
with the new gun, he would then throw the gun to Ibanez in some nearby bushes, and
Ibanez would run away with the gun.

On February 28, 2013, the Munzanreders went to see a movie at the Majestic
Theater in Union Gap, Washington, a small city immediately south of Yakima. Ibanez received a prearranged text message from Munzanreder that the plan would be executed
and went to the theater and waited in the bushes adjacent to the theater’s parking lot.

After the movie, as the couple approached their car, Munzanreder shot his wife with the
gun purchased by Ibanez. Munzanreder then threw the gun into the bushes where Ibanez
waited. As Ibanez left the scene with the gun, he ran past a couple near his car.

Law enforcement arrived and questioned witnesses. Munzanreder told law
enforcement he heard a shot and saw a man in black clothes running away. Munzanreder
said he had followed the man, but fell and injured himself, developing a black eye.

Munzanreder’s wife later died from her injuries.

Law enforcement continued to investigate. They interviewed Ibanez, whose car
had been reported at the crime scene. Ibanez quickly confessed and told law enforcement
of the details of the crime. Media coverage of both the murder and the arrests quickly
saturated Yakima County.

Munzanreder was charged with Murder in the First Degree. The State also sought a Deadly Weapon Enhancement because the crime occurred with a handgun.

The Jury Questionnairre

Defense counsel and the State had worked together to create an agreed juror
questionnaire. The purpose of the questionnaire was to uncover juror bias, so that the
trial court and the parties could individually interview venire jurors with possible bias in
open court but outside the presence of other venire jurors.

The questionnaire contained many questions, including questions focusing on
pretrial publicity about the case. Those questions asked the venire jurors to list media
sources they used, whether they generally believed the media, whether they thought the
media was fair to both sides of a case, and what criminal cases they followed in the
media. It also specifically asked about Munzanreder’s case. The questionnaire asked
venire jurors if they knew information about the case from any sources, and concluded the
section by asking if they had formed any opinions about the case. The questionnaire also
asked venire jurors if they wanted to discuss their answers separately from other jurors.

The completed questionnaires revealed that 105 of the remaining 128 venire jurors knew
about the case; of these 105, 24 had formed opinions; and of these 24, most believed
Munzanreder was guilty.

Before the remaining venire panel returned to the courtroom, Munzanreder orally
moved for a change of venue. The motion was anticipated because Munzanreder had
earlier said he would make such a motion, and had provided the trial court and the State
with copies of local media stories and media Facebook posts.

The State, although opposing Munzanreder’s motion, indicated the trial court might give additional peremptory challenges. Munzanreder responded that he might ask for additional peremptory challenges, but would not do so until after the court ruled on his motion. The trial court took the motion under advisement and said it would make its ruling later in the jury selection process.

The parties completed voir dire and then went through the process of selecting the
Jury. The trial court permitted each party 6 peremptory challenges for the first 12 jurors,
and 1 additional peremptory challenge for each of the 3 alternate jurors. Munzanreder
never asked for additional peremptory challenges.

The panel was sworn in. The trial court provided the panel various preliminary
instructions and then excused them for lunch. With the panel excused, the trial court gave
its oral ruling denying Munzanreder’s motion to change venue.

Over the next several days, the parties presented their evidence.

The jury returned a guilty verdict on 1st degree murder with a firearm
enhancement. The trial court sentenced Munzanreder to 340 months of incarceration.

Munzanreder timely appealed. His principal arguments on appeal are the trial court abused its discretion when it denied his motion to change venue, and the voir dire process used by the trial court failed to protect his constitutional right to an impartial jury.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court applied a Gunwall analysis to determine if the Washington Constitution provides greater protection than the United States Constitution in a particular context.  A Gunwall analysis must be performed, if litigants want the court to consider whether a parallel constitutional provision affords differing protections.

Here, the Court found that Munzanreder’s state constitutional right to an impartial jury should be interpreted as providing the same degree of protection as the parallel federal constitutional right. The Court similarly held that article I, section 22 of the WA Constitution’s right to an impartial jury does not provide any more protection than the Sixth Amendment.

Second, the Court of Appeals raised and dismissed Munzanreder’s arguments that the voir dire process employed in his case was insufficient. It reasoned that under Lopez-Stayer v.
Pitts, a trial court has considerable discretion in conducting voir dire. Abuse of discretion occurs when a trial court bases its decision on untenable grounds or untenable reasons.

Here,  the Court of Appeals discussed how extensive and meticulous jury selection was in this case. The trial court summoned 243 potential jurors. The parties worked together to craft an extensive juror questionnaire that satisfied the State, Munzanreder, and the trial court. The trial court granted several dozen individual interviews in open court outside the presence of other venire jurors. The trial court was fully involved with the process, and asked questions designed to expose bias and to ensure that jurors would reach a verdict based on the evidence presented at trial and on the court’s instructions on the law. Jury selection took over four days. Munzanreder did not request additional peremptory challenges, despite knowing he had that option. Munzanreder simply asserts now that the process was insufficient, although he was heavily involved at trial in developing the process used. Ultimately, the Court of Appeals decided that because Munzanreder does not show an abuse of discretion, his appeal on this issue fails.

Third, the Court of Appeals raised and dismissed Munzanreder’s arguments that the jury selection process used by the trial court was constitutionally deficient. He attempts to punctuate his point by showing that four biased jurors were empaneled. The Court reasoned that A party may challenge a juror for cause under CrR 6.4(c); and RCW 4.44.170. The trial court is in the best position to determine whether a juror can be fair and impartial because the trial court is able to observe the juror’s demeanor and evaluate the juror’s answers to determine whether the juror would be fair and impartial. For this reason, this court reviews a trial court’s denial of a challenge for cause for a manifest abuse of discretion.

Here, the Court of Appeals found no manifest abuse of discretion. Munzanreder failed to use his peremptory challenges to remove juror #51, a potentially bad and unbiased juror. He also elected not to request additional peremptory challenges. If the trial court erred in denying Munzanreder’ s for cause challenge of venire juror 51, because Munzanreder elected not to remove venire juror #51 with his allotted peremptory challenges or by requesting additional challenges, Munzanreder waived that error.

Fourth, the Court of Appeals raised and dismissed Munzanreder’s arguments that the trial court abused its discretion when it denied his motion for a change of venue. He primarily argues the pretrial media publicity was overwhelmingly inflammatory, which prejudiced the jury pool against him. The Court reasoned that in order to prevail on a change of venue motion, the defendant need only show a probability of unfairness or prejudice. Sheppard v. MaxwellState v. Rupe. The following nonexclusive factors aid our review of whether a trial court abused its discretion in denying a change of venue motion:

(I) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.”

Here, the Court of Appeals reasoned that although the initial venire pool provided substantial challenges because of the trial court’s careful process for selecting a jury, it was highly confident that 11 of the 12 empaneled jurors were impartial.

“If venire juror #51 was biased, Munzanreder had the opportunity to remove him,” said the Court. “Munzanreder elected not to use any of his peremptory challenges to remove venire juror 51, and he did not request additional peremptory challenges. These two facts strongly suggest that even Munzanreder believed the empaneled jury was fair and impartial.” With that, the Court of Appeals concluded the trial court did not abuse its discretion when it denied Munzanreder’s motion to change venue.

Consequently, the Court of Appeals confirmed Munzanreder’s conviction.

“Rough Estimates” Can’t Support a Conviction for Property Crimes.

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In State v. Williams, the WA Court of Appeals decided that a victim’s “rough estimate” regarding the value of stolen property of “roughly $800” will not support a conviction for possession of property in the second degree. While the owner of a chattel may testify to its market value without being qualified as an expert on valuation, the owner must testify to an adequate basis of his opinion of value to support a conviction.

FACTS & BACKGROUND

In May 2014, the Spokane Police Department received calls complaining of a man stalking through backyards in a west Spokane neighborhood. On May 6, 2014, one caller, Brad Dawson, observed the man carrying two sports duffel bags and possibly a screwdriver. Also on May 6, 2014, someone burglarized the home of David and Joan Nelson.

Joan Nelson’s brother, John Johnston, drove through the neighborhood in an attempt to apprehend the burglar. After inspecting five homes, Johnston espied a kneeling gentleman, with two duffels bags astride, employing a screwdriver to pry open a lock on a storage facility. The man fled when Johnston yelled.

Johnston called 911 and tracked the fleer as the fleer scattered from yard to yard and hid in changing locations. Johnston kept contact on his cellphone with Spokane police. Spokane police officers arrived and apprehended the burglar, Leibert Williams. Law enforcement officers found a duffel bag, a Bluetooth speaker, a laptop, running shoes, a jacket, and two rings belonging to Adam Macomber in the possession of Williams. Days earlier, Macomber had discovered the property missing from his apartment.

The State of Washington charged Leibert Williams with five crimes: (1) residential burglary, (2) second degree burglary, (3) attempted second degree burglary, (4) attempted theft of a motor vehicle, and (5) possession of stolen property in the second degree. The State added the final charge near the date of trial.

During trial, Macomber identified those items missing from his apartment. However, he only gave “rough estimates” of $800 for the value of his items.

The State presented no other testimony of the value of stolen goods. And the trial court denied a request by Leibert Williams for a lesser included offense instruction with regard to second degree possession of stolen property.

The jury found Williams guilty of first degree criminal trespass, attempted second degree burglary, vehicle prowling, and second degree possession of stolen property. The jury acquitted Williams of residential burglary.

Williams’ appeal concerns the possession of stolen property conviction.

ANALYSIS & CONCLUSION

The Court reasoned that Macomber’s testimony failed to show beyond a reasonable doubt that the value of his stolen property exceeded $750 when Macomber said, “I could give a rough estimate . . .  I would say roughly $800.”

It further reasoned that “value” for the purposes of theft means the market value of the property at the time and in the approximate area of the theft. “Market value” is the price which a well-informed buyer would pay to a well-informed seller, when neither is obliged to enter into the transaction. In a prosecution, value need not be proved by direct evidence. Rather, the jury may draw reasonable inferences from the evidence, including changes in the condition of the property that affect its value.

Here, Adam Macomber testified to a “rough estimate” value of the stolen goods to be $800, a figure close to the minimum amount required to convict of $750. He listed the property taken from him, but did not describe the condition of the property when stolen. He also failed to disclose the purchase date or the purchase price of each item.

“Macomber did not testify to the basis of his opinion of value. For all we know, he used the purchase price of the goods, the replacement cost of the goods, or some intrinsic value to himself.”

With that, the Court decided that the proper remedy for the insufficiency of evidence was to dismiss the charge for possession of stolen property in the second degree. This somewhat extreme measure was partially based on the trial court’s refused to instruct the jury on the lesser included offense of third degree possession: “This court lacks authority to direct the entry of judgment of the lesser included offense if the jury was not instructed on that offense.”

My opinion? Good decision. My heart goes out to the victim, however, courts need more than mere “rough estimates” when it comes to assigning a value to property. Indeed, property crimes are assigned a seriousness level – from simple misdemeanors through Class A felonies – by identifying the value of the property which was stolen or destroyed. These are not small matters. There’s a big difference between felonies and misdemeanors. Therefore, it’s extremely important to be specific and correct on these matters.

 

Opening the Door

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In State v. Wafford, the WA Court of Appeals that a defendant’s counsel “opened the door” to suppressed evidence during opening statement, and that the proper remedy was to admit evidence that the court had previously ruled inadmissible.

FACTS & BACKGROUND

The incidents began years before. In 2005, T.H.’s mother heard that eight-year-old T.H. had told a friend that something inappropriate happened with Mr. Wafford. After reporting to police, T.H.’s mother took T.H. to be interviewed at Dawson Place, the Snohomish County Center for Child Advocacy. There, a child forensic interview specialist talked with T.H., and their conversation was video-recorded. T.H. did not make a specific disclosure of sexual abuse by Wafford, though she did appear to nod affirmatively in response to one question about inappropriate sexual contact. The State did not investigate further or charge Wafford.

However, Mr. Wafford continued to sexually abuse H.F. as well as her sister T.H. Eventually, the State charged Wafford with crimes against both T.H. and H.F.  As to T.H., Wafford was charged with first degree rape of a child, first degree child molestation, and first degree incest. As to H.F., Wafford was charged with first degree rape of a child, first degree child molestation, and third degree child molestation.

PRE-TRIAL SUPPRESSION OF VIDEO INTERVIEW

Before trial, the court conducted a child hearsay hearing at which it concluded that the 2005 recorded interview of T.H. was inadmissible. The court reasoned that because T.H. never actually described an act of sexual contact, her statements were not admissible under the child hearsay statute.

TRIAL

During defense counsel’s opening statement, she referred explicitly to the video of T.H.’s interview: “Mariyah brought both H.F. and T.H. to Dawson Place in 2005. Nova Robinson interviewed on video T.H., but T.H. denied that anything was happening to her.” The State did not object.

After opening remarks, the State requested that the court admit the interview video that had been previously excluded. The State argued that when defense counsel mentioned the video, she opened the door to its admission. The court found that defense counsel opened the door and admitted a portion of the video. Ultimately, the jury found Wafford guilty of first degree child molestation of T.H., but was unable to reach a verdict on the remaining counts. The court sentenced Wafford to 68 months in prison.

Wafford appealed on the argument that, as a matter of law, comments made by counsel during opening statements cannot open the door to otherwise inadmissible evidence.

ANALYSIS AND CONCLUSION

The Court reasoned that (1) a party who introduces evidence of questionable admissibility may open the door to rebuttal with evidence that would otherwise be inadmissible, and (2) a party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party’s evidence. State v. Jones, citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed.2007).

With that background, the Court addressed Wafford’s argument that because a comment made during an opening statement  is not evidence, it cannot open the door pursuant to State v. Whelchel and  Corson v. Corson.

However, the Court distinguished these cases. First, it reasoned that Whelchel does not support the broad proposition that opening statements cannot open the door because the evidence in question in Whelchel was admissible when the parties made opening statements. Second, the Corson case was distinguishable because in that case the trial court wrongfully admitted irrelevant and prejudicial evidence in response to an improper opening statement when other more effective means of ensuring a fair proceeding are available. Consequently, the Corson case did not hold that opening statements can never open the door to otherwise inadmissible evidence.

Next, the Court rejected Wafford’s argument that comments made during opening statements cannot open the door. First, such a rule would be contrary to the general rule permitting trial courts the discretion to determine the admissibility of evidence. Second, whether the issue arises from the statement of counsel or the testimony of a witness is immaterial to the question faced by the trial judge: to what extent, if any, has the statement compromised the fairness of the trial and what, if any, response is appropriate:

“In answering this question, the trial judge should have a range of options at his or her disposal. A judge may admonish the jury to disregard certain statements or reiterate its instruction that opening statements are not evidence. The judge may allow testimony about otherwise inadmissible evidence, while continuing to exclude the exhibit or document which contains the evidence. Or the judge may find that a party has opened the door to otherwise inadmissible evidence. The appropriate response is that, which in the discretion of the trial judge, best restores fairness to the proceeding.”

Finally, the Court rejected Wafford’s argument that the trial court mistakenly admitted the recording because it was inadmissible hearsay and therefore incompetent evidence.  Under ER 801(d)(1)(ii), a statement is not hearsay if “the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is… consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. . . .” Here, however, the victim testified. The court concluded her affirmation of Wafford’s unlawful sexual conduct was consistent with her testimony and is thus not hearsay under ER 801(d)(1).

With that, the Court upheld Wafford’s conviction and sentencing.

My opinion?

It is well settled in Washington that a party that introduces evidence of questionable admissibility runs the risk of “opening the door” to the admission of otherwise inadmissible evidence by an opposing party.

For this reason, it is mandatory that attorneys exercise extreme discretion with their comments and questions during trial. Defense attorneys must avoid discussing evidence they work so hard to suppress. Not only can one “open the door” during direct and cross examination of witnesses, but also opening statements.