Category Archives: Firearm

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.

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.

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.

No Motion to Suppress?

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In Mahrt v. Beard, the 9th Circuit Court of Appeals held that a defendant may bring a pre-plea ineffective assistance of counsel claim when counsel’s failure to argue a motion to suppress the fruits of a search prevents the defendant from making an informed choice whether to plead guilty.

BACKGROUND FACTS

On September 3, 2012, Sonoma County Sheriff’s deputies were dispatched to a residence in Petaluma, California. A neighbor had reported that a male and female subject were arguing over a gun. The Defendant Gregory Mahrt was living in a garage on the property that had been converted into a room. As the deputies approached the property, Mahrt walked out and met them at the front gate. The deputies detained Mahrt and asked about the argument, the gun and whether anyone else was inside the residence.

Mr. Mahrt was “uncooperative.” The deputies conducted a “protective sweep” of Mahrt’s room in the garage. As the deputies approached the garage, Mahrt began yelling that he did not want the officers to enter his room. According to the report, the deputies observed ammunition cans, ammunition, and what appeared to be an AR-15 Rifle (later determined to be a replica).

The deputies subsequently learned that Mahrt had a prior felony conviction and arrested him for being a felon in possession of ammunition. The deputies then asked Mahrt for permission to search his room.

This is where the facts differ: according to police reports, Mr. Mahrt consented. The deputies conducted a second search of the room. They found additional ammunition, rifle magazines, and two firearms. According to Mahrt, however, he did not consent to the search.

On September 5, 2012, the State of California charged Mahrt with having been a felon in possession of a firearm and ammunition in violation of California Penal Code § 29800(a)(1) and § 30305(a)(1). Mahrt believed that the warrantless search (or searches) of the garage was (or were) illegal. However, neither of the two public defenders who represented him at the trial court level moved to suppress the firearms and ammunition recovered from his room.

Nevertheless, despite his defense counsel’s failure to move to suppress, Mahrt pleaded guilty to both charges and received a six-year sentence. He appealed. On appeal, Mahrt’s appointed counsel did not raise any issues. Instead, his counsel filed a Wende brief, the California analogue to an Anders brief. A Wende brief is filed when a California appellate attorney concludes that an appeal would be frivolous.  On November 27, 2013, the California Court of Appeal affirmed Mahrt’s conviction.

On April 11, 2014, Mahrt filed a federal habeas petition pursuant to 28 U.S.C. § 2254(d). The petition alleged that Mahrt’s Sixth Amendment right to effective assistance of counsel was violated by his trial counsels’ failure to move to suppress the firearms and ammunition found in his room. A magistrate judge, sitting by consent, granted Mahrt’s petition. The State timely appealed.

ANALYSIS & CONCLUSION

  1. The Defendant May Proceed With a Pre-Plea Ineffective Assistance of Counsel Claim.

The 9th Circuit  reasoned that Mahrt’s ineffective assistance of counsel claim, premised upon a failure to file a motion to suppress, is squarely within this line of case discussing pre-plea ineffective assistance of counsel by failing to file a motion to suppress:

“The State’s entire case against Mahrt depended on its ability to introduce into evidence the firearms and ammunition found in his room. If the deputies unconstitutionally searched Mahrt’s home, counsel’s failure to move to suppress the fruits of that search prevented Mahrt from making the informed choice to which he was entitled.”

    2. Mahrt’s Counsel Was Ineffective.

The Court held that Mahrt’s counsel was ineffective in failing to move to suppress the firearms and ammunition. It reasoned that there was at least a chance that such a motion would have succeeded. First, there was a clear conflict in the available evidence. Second, a police officer’s report mischaracterized the first search as a “protective sweep.”

The Court reasoned that a warrantless protective search is permitted under Maryland v. Buie, based on the “interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack.” Here, Mahrt was being detained by the deputies, and they had no reason to suspect that there was some other person inside the residence who could pose a danger to themselves or to others. Consequently, the Court reasoned that defense counsel should have filed and argued a motion to suppress the search of Maert’s premises.

My opinion? It’s very importnant to retain qualified defense counsel in search and seizure cases such as this. Here, the defendant accepted a plea bargain on the advice of defense counsel who, according to the court, failed to argue motions to suppress. Pretrial motions are essential. It’s imperative to hire defense counsel who know the law and argue it effectively. Contact my office if you, a friend or family matter face criminal charges where a search was involved.

Overbroad Parolee Searches

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In State v. Livingston, the WA Court of Appeals Division II held that evidence collected during a warrantless search of the defendant’s vehicle following the defendant’s arrest on a D.O.C. warrant is only admissible if there is a nexus between the community custody violation and the searched property.

On May 29, 2014, DOC Officer Thomas Grabski observed a person, later identified as Darian Livingston, who he recognized as having an outstanding DOC arrest warrant; Livingston was washing a vehicle alone at a car wash. Officer Grabski called for assistance, and two more officers arrived to assist him.

When the additional officers arrived, Livingston was talking with a person on a motorcycle. The person on the motorcycle drove away when the officers approached. Livingston was the only person near the vehicle. After confirming Livingston’s identity and the warrant, the officers arrested Livingston.

The officers then asked Livingston about the vehicle he had been washing. He said it belonged to his girlfriend who had gone to a nearby store, but he later admitted that his girlfriend was in Seattle and could not pick up the vehicle.

Livingston also admitted that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first saw the officers. At the time of his arrest, Livingston was on active DOC probation. The DOC warrant issued in his name said there was “reasonable cause to believe Mr. Livingston] violated a condition of community custody.

DOC Officers Grabski and Joshua Boyd conducted a “compliance search” of the vehicle. When they conducted the search of the vehicle, the officers did not have any information about the nature of the violation that triggered the issuance of the DOC warrant.

Inside the vehicle, the officers found mail and other documents with Livingston’s name on them, a single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, the officers found a black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying a baggie of cocaine on his person.

The State charged Livingston with first degree unlawful possession of a firearm (count I), unlawful possession of a controlled substance with intent to deliver (cocaine) (count II), bail jumping (count III), unlawful possession of a controlled substance (oxycodone) (count IV), and unlawful possession of a controlled substance (hydrocodone/dihydrocodeinone) (count V). Before trial, Livingston moved to suppress the evidence discovered during the vehicle search. The judge denied Livingston’s motion. He appealed.

Livingston argued that the trial court erred in deciding that the vehicle search was lawful under RCW 9.94A.631(1) because the officers had a reasonable belief that he had violated a community custody condition or sentencing requirement. Instead, he asked the Court of Appeals to follow State v. Jardinez and hold that to justify such a search, the property searched must relate to the violation that the community custody officer (CCO) believed had occurred.

First, the Court of Appeals reasoned that both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches unless an exception exists. Washington law recognizes, however, that probationers and parolees have a diminished right of privacy that permits warrantless searches based on reasonable cause to believe that a violation of probation has occurred. This reduced expectation of privacy for parolees is recognized in RCW 9.94A.631(1), which states,

If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Second, the Court reasoned that pursuant to State v. Jardinez, there must be a nexus between the violation and the searched property. In Jardinez, the defendant’s parole officer searched his iPhone for no reason and found evidence linking Mr. Jardinez to criminal behavior. He was charged and convicted. On his appeal, the Court of Appeals examined the following official comment from the Sentencing Guidelines Commission (Commission) on RCW 9.94A.631(1):

“The Commission intends that [CCOs] exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the [CCO] upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the [CCO] believes to have occurred.”

Noting that Washington courts “have repeatedly relied on the Commission’s comments as indicia of the legislature’s intent,” Division Three concluded that the italicized portion of this comment “demands a nexus between the searched property and the alleged crime.” Following Jardinez, the Court of Appeals held that the trial court erred when it failed to consider whether there was a nexus between the violation and the searched property.

With that, the Court affirmed Mr. Livingston’s bail jumping conviction, count III, and his unlawful possession of a controlled substance conviction charged as count II. However, the court reversed the order denying Livingston’s motion to suppress the evidence discovered in the vehicle search and remanded Livingston’s case back to the trial court for further proceedings consistent with this opinion.

My opinion? Good decision. i blogged about Jardinez in another post, and found that opinion compelling as well. Excellent use of prior precedents and stare decisis.

“Common Authority” Vehicle Searches

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In State v. Vanhollebeke, the WA Court of Appeals Division III decided a vehicle owner’s consent to search overrode the driver’s express objections.

On the night of November 10, 2014, Sergeant Garza pulled the truck over that was facing the wrong way on a one-way street. Sergeant Garza got out of his patrol car and approached the truck. The defendant Mr. Vanhollebeke got out of the truck and started walking toward Sergeant Garza. Sergeant Garza ordered Mr. Vanhollebeke to get back in the truck. Mr. Vanhollebeke then said he had locked himself out of the truck. This unusual behavior made Sergeant Garza suspicious.

Dispatch advised that Mr. Vanhollebeke’s license was suspended. Dispatch also advised that Mr. Vanhollebeke was not the registered owner of the truck, and that the truck belonged to a man named Bill Casteel. Sergeant Garza’s plan at this point was to cite Mr. Vanhollebeke for driving with a suspended license and then release him.

However, another police officer noticed a glass pipe with a white crystal substance on it sitting in plain view near the dashboard, which he believed was drug paraphernalia. Also, the truck’s steering column was “punched,” which indicated the truck was stolen. The officers did not release Mr. Vanhollebeke and kept him in their custody.

The officers asked for permission to search the truck. Mr. Vanhollebeke refused. Sergeant Garza contacted Mr. Casteel, the actual owner of the truck, at Casteel’s home. Mr. Casteel told Deputy Barnes that Mr. Vanhollebeke had permission to use the truck. Casteel also gave police permission to search his truck and gave Deputy Barnes a key to it.

Deputy Barnes returned directly to the scene. He used the key to open the truck and began to search it. He looked under the driver’s seat and saw a revolver. The glass pipe tested positive for methamphetamine. The officers confirmed through dispatch that Mr. Vanhollebeke had a prior felony conviction.

The State charged Mr. Vanhollebeke with first degree unlawful possession of a firearm. Mr. Vanhollebeke argued a CrR 3.6 motion to suppress the physical evidence on the grounds that he had refused to give the officers consent to search the truck and also that the stop’s length and scope were unreasonable. However, the trial court admitted the evidence and denied Mr. Vanhollebeke’s motion to suppress. The jury convicted Mr. Vanhollebeke.

Vanhollebeke appealed on the issue of whether Mr. Casteel’s consent overrode Mr. Vanhollebeke’s express objection to search.

The Court of Appeals upheld the search. It reasoned that the Fourth Amendment to the United States Constitution guarantees people the right to be free from unreasonable searches and seizures. Warrantless searches are generally illegal unless they fall within one of the exceptions to the warrant requirement. However, one exception is consent to search by a person with authority over the place or thing to be searched. This exception includes consent given by a third person, other than the defendant.

The court further reasoned that to grant valid consent, the third party must have common authority over the place or thing to be searched. The court explained that common authority does not mean that the third party has a mere property interest in the place or thing being searched. Rather, to establish lawful consent by virtue of common authority, (1) a consenting party must be able to permit the search in his own right, and (2) it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search.

The court decided Mr. Vanhollebeke’s right to use the truck was dependent on the owner’s unrevoked permission:

“Here, Mr. Vanhollebeke had the actual right to exclude all others from the truck except for Mr. Casteel. For this reason, Mr. Vanhollebeke did not have a reasonable expectation of privacy if Mr. Casteel wanted to search his own truck or allow another person to do so.”

With that, the Court concluded Mr. Casteel’s consent to search his truck overrode Mr. Vanhollebeke’s objection. Therefore, the search did not violate Mr. Vanhollebeke’s reasonable expectation of privacy and the trial court did not err in denying Mr. Vanhollebeke’s CrR 3.6 motion to suppress. Vanhollebeke’s conviction was affirmed.

My opinion? Common authority search issues don’t happen very often in criminal defense. But when they do, it’s imperative to hire competent criminal defense who can leverage a strong motion to suppress the evidence and/or divide the “common parties” to the search. Perhaps the greatest lesson to learn is to simply avoid transporting illegal contraband in plain view within borrowed vehicles.

Corpus Delicti & Murder Confessions

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In State v. Young, the WA Court of Appeals Division II decided the defendant’s confession to murder was properly admitted because the State presented ample independent evidence of (1) the fact of death, and (2) a causal connection between the death and a criminal act.

On the morning of July 4, 2013, John Young entered the Desert Food Mart in Benton City and asked the cashier to call 911 because he had witnessed a shooting of a man named Jacob. Police were summoned. As the investigation proceeded, Mr. Young became a suspect. He was brought in for questioning, and consented to audio and video recording of an interview.

During the interview, an officer read Mr. Young Miranda warnings and obtained his agreement that he understood he was now a suspect and any statements he made could be used against him. Mr. Young then confessed that Jacob was involved in a drug deal gone wrong. With the assistance of an accomplice named Joshua Hunt,  Mr. Young admitted he fired one shot into Jacob’s head near the temple-cheek region, killing him.

Mr. Young also confessed that he and Mr. Hunt disposed of their shoes and gun by putting the items into a backpack and throwing the backpack into a river. Later, police recovered the shoes and gun.  The shoes matched footprints and shoe patterns that had been found in the sand near Jacob’s body. The Washington State Patrol Crime Laboratory determined that all of the bullets recovered from the crime scene had been fired from the Charter pistol found in the backpack.

Mr. Young was charged with first degree murder.

During a 3.5 hearing, Young’s attorney lawyer stipulated to the admission of the videotaped interview, telling the court:

“We believe it’s in our interests to actually stipulate to the 3.5 hearing, and I’ve discussed that with Mr. Young, and I know the Court will make its own inquiries, but he knows and understands he has a right to that hearing, but we believe it’s in our benefit and strategic interest to proceed with the stipulation.”

The court questioned Mr. Young, who stated he understood he had a right to a hearing on the admissibility of the statements but was agreeing instead that all of his statements were admissible.

During trial, Mr. Young’s videotaped confession was played for the jury. At the conclusion of the evidence, the jury returned a guilty verdict. Mr. Young appeals.

Mr. Young argued his defense counsel provided ineffective assistance of counsel by stipulating to the admission of Mr. Young’s confession when there was no independent evidence apart from his confession, under the corpus delecti rule, sufficient to establish all the elements of first degree murder.

For those who don’t know, corpus delicti is a term from Western jurisprudence referring to the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.

The Court of Appeals rejected Young’s arguments. It reasoned that in a homicide case, the corpus delecti generally consists of two elements: (1) the fact of death, and (2) a causal connection between the death and a criminal act. It can be proved by direct or circumstantial evidence, which need not be enough to support a conviction or send the case to the jury. In assessing whether there is sufficient evidence of the corpus delicti independent of a defendant’s statements, the Court assumes the truth of the State’s evidence and all reasonable inferences from it in a light most favorable to the State.

Here, the corpus of the crime of murder was amply established by (1) a dead person; (2) multiple gunshot wounds that established a casual connection with a criminal act; (3) testimony eliminating the possibility of self-inflicted wounds; and (4) the recovery of the weapon miles away from the dead body.

Furthermore, the Court reasoned that the State is not required to present independent evidence of the defendant’s mental state. It reasoned the State is not required to present independent evidence sufficient to demonstrate anything other than the fact of death and a causal connection between the death and a criminal act.

Finally, the Court rejected Mr. Young’s claims of ineffective assistance of counsel:

“It appears from his closing argument that Mr. Young’s trial lawyer believed his client’s videotaped interview would advance that argument. Mr. Young fails to demonstrate that his trial lawyer lacked a strategic reason for the stipulation.”

With that, the Court of Appeals confirmed Mr. Young’s conviction.

My opinion? This case represents a fairly straightforward analysis of the corpus delicti defense. I’ve had great success when it applies, and have managed to get many criminal charges reduced or dismissed under this defense. However, the corpus delicti defense is extremely narrow. Aside from the defendant’s confession, there must be virtually NO independent evidence connecting the defendant to the crime. Here, other evidence existed which implicated Mr. Young and the defense was found inapplicable.

“Stop & Frisk” of Friends

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

Youth as Mitigating Factor

In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

Wielding Inoperable Firearm During Crime is Still Unlawful

In State v. Tasker, the WA Court of Appeals Division III held that although the State must prove to the jury that the defendant possessed a real firearm at the time of the crime, the State is not required to prove that the firearm was operable.

On June 13, 2013, Gloria Campos-White was sitting in her parked car outside of her daughter’s middle school waiting for her daughter’s basketball practice to finish. A man walked up to her open driver’s side window, pointed a gun in her face, and demanded she give him her purse. She complied, telling him as she handed him the purse that she did not have any money.

After the man had her purse, he got into the back seat and ordered Ms. Campos-White to drive. He still had the gun when he entered the car, and that although she did not see it again, at one point when they were actually driving she thought she heard the clicking of something behind her head.

The man gave directions as she drove, but he did not tell her where they were going. She did not know where they were. Not knowing his intentions, Ms. Campos-White felt desperate to get away. Without slowing her car, she waited for a gap in oncoming traffic, unbuckled her seatbelt, opened the car door, and jumped out of the moving vehicle. Her car soon struck a bank on the side of the road and flipped on its side. People nearby heard the crash. They stopped traffic and attended to Ms. Campos-White. They saw a man climb out of a passenger side door of her car and run off. Ms. Campos-White sustained a severe concussion that led to the loss of her ability to taste or smell.

Ultimately, based on video surveillance recorded by the middle school, Ms. Campos-White’s identification, and physical evidence recovered from the scene of the crash, Christopher Tasker was arrested and charged with first degree kidnapping, attempted first degree robbery, and first degree unlawful possession of a firearm. The State sought firearm enhancements in connection with both the first degree kidnapping and the attempted first degree robbery charges.

At trial, Ms. Campos-White identified Mr. Tasker as the man who kidnapped and attempted to rob her. She described the gun that Mr. Tasker used, explaining it was a dark color and small enough to be held with one hand. She admitted during the State’s examination that she did not know much about guns or firearms, and testified that she had “never seen a gun in real life.” She also admitted that she would not know the difference between a revolver and semiautomatic handgun by name, but knew that they looked different. She never wavered from her testimony that Mr. Tasker had been armed with a gun, however. Asked on cross-examination whether there was any chance it could’ve been anything besides a handgun, she answered, “No.”

The defense devoted its entire closing argument to urging the jury that there was reasonable doubt whether Mr. Tasker had been armed with a real firearm. It emphasized Ms. Campos-White’s nonspecific description of the gun, her inexperience with firearms, and an asserted hesitancy in her testimony. Nevertheless, the jury found Mr. Tasker guilty of all charges and imposed the deadly weapon sentencing enhancements.

Defense Counsel brought a post-trial motion to set aside the jury’s verdict on the firearm possession findings.  The trial court informed the parties that it had concluded after reading cases cited by the parties that Division Two of the Court of Appeals “seems to focus more on the question of has the prosecution proven that the gun was operable,” while Division One “appears to focus more on the question of was the gun real,” a “slightly different question.” The court denied Defense Counsel’s motion, “recognizing that it’s a razor thin issue and it could go either way on appeal.”

Mr. Tasker’s sentences on his three convictions run concurrently, with the longest being his 144 month sentence on the first degree kidnapping count. The firearm enhancement terms (60 months for the kidnapping and 36 months for the attempted robbery) run consecutive to his base sentence, increasing his sentence by eight years.

Mr. Tasker appealed on the argument that the State failed to prove he wielded an operable firearm during the crimes. In other words, the question was whether evidence of operability at the time of the crime is required because the statutory definition of “firearm” includes language that it is a weapon or device “from which a projectile or projectiles may be fired.” Again, he argued, the firearm was inoperable.

Ultimately, the Court of Appeals was not persuaded. Instead, it found that a reasonable juror would have found sufficient evidence that Mr. Tasker wielded a firearm.

Here, the State presented sufficient evidence of what it was required to prove: that the gun Mr. Tasker used in the assault was a gun “in fact,” rather than “a gunlike but nondeadly object. Mr. Tasker pointed the gun at Ms. Campos-White’s face in demanding her purse and used it to advance a kidnapping. Visibility was good; the crime occurred in daylight on a June afternoon. Ms. Campos-White saw the gun at close range and was unwavering in her testimony that it was a gun. While she forthrightly admitted to little experience with guns “in real life,” she was old enough, as the mother of a middle schooler, to have seen guns in photographs, on the news, in television programs and in movies. The clicking noise she described hearing behind her head was consistent with Mr. Tasker’s use of a real gun. Collectively, the evidence was sufficient to establish the gun met the definition of a “firearm” under RCW 9.41.010(9).

Consequently, the Court of Appeals affirmed the convictions.

My opinion? Interestingly enough, the Court of Appeals Division One might have arrived at a different conclusion. Divisions Two and Three do not require proof of a firearm’s operability. However, Division One does require such proof.