Category Archives: Kidnapping

Autopsy Photos Admitted

Image result for bloody gruesome photo evidence

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

FACTUAL BACKGROUND

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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.

State v. Lindsay: When Attorneys Act Unprofessionally

VERY interesting opinion from the WA Supreme Court discusses the issue of attorneys having bad manners in court.

In short, the WA Supremes reversed a defendant’s conviction because the lawyers “engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout the proceedings in this case.”

http://www.courts.wa.gov/opinions/pdf/884374.pdf

The defendants were charged with Robbery, Burglary, Kidnapping, Assault and Theft of a Firearm. The jury convicted them of some, but not all counts. The WA Supreme Court reasoned that although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. In short, a prosecutorial misconduct involves a two-part inquiry: (1) whether the prosecutor’s comments were improper, and (2) whether tjhe improper comments caused prejudice.

The court noted that although the conflict from both the Prosecutor and Defense Counsel seemed mutual and both attorneys were at fault, Prosecutors are held to a higher standard of conduct. Additionally, some of the Prosecutor’s hijinks at Closing Argument required reversal of the conviction. For example, the Court noted that Prosecutors may not refer to defense counsel’s closing argument as a “crock.” These comments impugn Defense Counsel, and imply deception and dishonesty. The Prosecutor also said that the defendant Holmes’s testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard.”

Additionally, the Prosecutor’s attempts at coupling the jigsaw puzzle analogy with a percentage of missing pieces in the defense attorney’s case was also reversible error. Moreover, comparing the reasonable doubt standard to the decision made at a cross-walk is error. In addition, telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is also improper. A prosecutor’s stating that a witnesses’ testimony is “the most ridiculous thing I’ve ever heard” is an improper expression of personal opinion as to credibility. Finally, a prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings.

My opinion? The WA Supremes made a good decision. Practicing law is hard. Conducting jury trials is very hard. Now imagine dealing with another attorney’s unprofessional conduct during trial. Unbelievable! Yes, these instances of misconduct happen. I speak from experience when I say it’s easy to get sucked into malicious and negative behavior, especially when attorney’s advocate in the heat of battle. Nevertheless, section 3.2 of Washington’s Rules of Professional Conduct require that attorneys be civil toward one another and the tribunal. It’s incredibly difficult for judges to analyze the legal issues over the furor of shouting attorneys. And it hurts the credibility of the entire legal institution when our citizens see us behaving badly. My heart goes out to the lawyers involved in the case. Hopefully, they worked out their differences.