Category Archives: No Contact Order

No-Contact Order Lengths

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In State v. Granath, the WA Court of Appeals held that the lower court erred by refusing to lift a post-conviction No-Contact Order when the defendant fulfilled all the conditions of her sentence.

BACKGROUND FACTS

Defendant Wendy Granath was charged with sending a series of harassing
e-mails to her estranged husband. She was convicted in King County District
Court on one count of Cyberstalking and one count of Violation of a No-Contact
Order. Both offenses were designated as crimes of domestic violence.

On November 8, 2012, the court imposed a 24-month suspended sentence. The court ordered 24 months of supervised probation and imposed fines and fees totaling $1,808.

Also on November 8, 2012, the court issued a No-Contact Order. The
order form was captioned as a post conviction domestic violence No-Contact Order authorized by RCW 10.99.050. The order directed Granath not to threaten, stalk, harass, or contact her estranged husband or keep him under surveillance, and not to knowingly come within 500 feet of him, his residence, his school, or his workplace. The order warned, “Violation of this order is a criminal offense under chapter 26.50 RCW and will subject a violator to arrest.”

Notably, the order form includes a blank space for the expiration date:

4. This no-contact order expires on: __________. Five years from today if no date is entered.

In Granath’s case, the district court did not enter a date in the blank, so by
default, the order was set to expire on November 8, 2017.

At any rate, the district court “closed the case” in December 2014 after Granath paid the fines. At this point, the no-contact condition of her sentence no longer remained in effect.

Granath moved to have the No-Contact Order vacated on the ground that it expired when she completed her sentence. However, the district court denied the motion. The court characterized a No-Contact Order issued under RCW 10.99.050 as a “stand-alone” order and found that such an order can “survive on its own” for a full five years even if the underlying sentence is completed earlier.

Granath appealed to King County Superior Court. The superior court
affirmed the lower court’s decision. The Court of Appeals granted Granath’s motion for review.

ISSUE

The legal issue was whether the legislature Intended to criminalize violation of a post conviction No-Contact Order entered as a condition of sentence if the violation is committed after that sentence has been served.

COURT’S ANALYSIS & CONCLUSIONS

The Court summarized the parties’ arguments. It acknowledged that Granath contends that under RCW 10.99.050(1), the no-contact order expires at the same time as the sentence containing the no-contact condition. In her case, that was in December 2014. The State, however, argues the No-Contact Order expires five years after the sentence was imposed.

Ultimately, the Court of Appeals took issue with the State’s argument. It said that the State’s idea that a No-Contact order may remain in effect for a ‘statutory maximum’ of some kind is not expressed in RCW 10.99.050; it is derived from State v. Armendariz. In that case, though, the maximum duration of the No-Contact order was derived from felony sentencing statutes, not from RCW 10.99.050.

“The State fails to come to grips with the plain language of RCW 10.99.050(1),” said the Court. It also criticized the State’s arguments as wrongfully interpreted policy arguments under LAWS OF 1979, 1st Ex. Sess., ch. 105, § 1; RCW 10.99.010.

The Court found that Granath was found guilty of a crime, she was sentenced, and a condition of the sentence restricted her contact with the victim. The district court was required by the statute to record the condition of the sentence as a no-contact order. However, once Granath completed her sentence and her case was closed, the No-Contact condition of sentence expired. The separate no-contact order expired at the same time. The district court erred by denying Granath’s motion to vacate the No-Contact Order.

“We conclude a no-contact order authorized by RCW 10.99.050(1) must reflect a no-contact condition of the sentence actually imposed. The No-contact order terminates when the no-contact condition of sentence terminates.”

With that, the Court of Appeals reversed the District Court’s ruling that the No-Contact Order in this case be preserved for 5 years.

My opinion? Good decision.

 

State v. Armstrong: Prosecutor Not Obligated to Bring Video Evidence

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Some Clients are concerned why can’t make the Prosecution obtain video surveillance evidence from crime scenes. This recent case explains why.

In State v. Armstrong, the WA Supreme Court held that the Prosecutor’s failure to obtain a copy of the AM/PM store’s surveillance video prior to the store’s destruction of the video pursuant to the store’s policy, did not violate the defendant’s due process rights.

FACTS & BACKGROUND

A no-contact order existed prohibiting Defendant Dennis Armstrong from contacting his former partner, Nadia Karavan. Nonetheless, on April 20, 2014, they agreed to meet at a bus stop in violation of the No-Contact Order. As the two talked, Armstrong became angry. He yelled and hit the wall of the bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist.

After a brief struggle, Karavan ran to a nearby AM/PM gas station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the two exchanged words. Armstrong followed Karavan around the store for several minutes, and Karavan asked Hawkins to call the police several times. When Hawkins finally called the police, Armstrong left the store.

Officers responded to the 911 call. Officer Martin noticed that Karavan had a slightly swollen, red abrasion on the side of her face.

Armstrong denied spending time inside the AM/PM. In response, the officers told Armstrong that surveillance video from the AM/PM would show what really happened. The officers repeatedly emphasized the video and told Armstrong that he should “tell the truth” because they had the “whole thing on video.”

The State charged Armstrong with a domestic violence felony violation of a court order.

Before trial and again during trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel failed to give him the surveillance video as he requested. The prosecutor told the court that the State had never possessed the video. The court denied Armstrong’s motions.

At trial, Hawkins (the AM/PM employee) testified that there were about 16 cameras around the store: a few of which covered the gas pumps and one that may have shown a slight, low view shot of the bus stop. Although Hawkins testified that police had requested surveillance video from AM/PM in the past, no officer requested footage from the night of this incident. Hawkins had previously reviewed the video from that night and testified that it showed what he described in his testimony, but per AM/PM policy, the video had since been destroyed.

At trial, the officers gave various reasons why they never collected the video. Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility of someone else at the scene to investigate the video. Officer Rodriguez testified that he never viewed the video. He simply followed Officer Elliot’s lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation on the case, testified that he did not investigate any video from the AM/PM because he did not know such video existed.

The jury returned a general guilty verdict despite the lack of surveillance video evidence.

On appeal – and with other arguments, Armstrong claimed that the police violated his right to due process because they failed to collect video surveillance from the AM/PM after using that video as a tool when interviewing Armstrong at the scene.

ANALYSIS & CONCLUSIONS.

Ultimately, the Court held that Armstrong failed to show that the police acted in bad faith when they did not collect video surveillance that was only potentially useful evidence.

The Court reasoned that under the Fourteenth Amendment to the federal constitution, criminal prosecutions must conform with prevailing notions of fundamental fairness, and criminal defendants must have a meaningful opportunity to present a complete defense. Consequently, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.

The court also reasoned that although the State is required to preserve all potentially material and favorable evidence, this rule does not require police to search for exculpatory evidence. And in order to be material exculpatory evidence – that is, evidence which has value to the defense of which can alter or shift a fact-finder’s decision on guilt or innocence – the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Finally, the court reasoned that the police’s failure to preserve “potentially useful evidence” was not a denial of due process unless the suspect can show bad faith by the State. The presence or absence of bad faith turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Also, acting in compliance with its established policy regarding the evidence at issue is determinative of the State’s good faith.

“Armstrong asserts that the video surveillance was potentially useful evidence,” said the Court. “Therefore, he must show that the police acted in bad faith.” According to Armstrong, the police acted in bad faith because they told him during the interview that they were going to collect the video but they never actually collected it. Armstrong describes this as the police acting with an “extreme cavalier attitude” toward preserving potentially useful evidence. The Court further reasoned that beyond this failure to collect the video, Armstrong offers no evidence of bad faith, such as improper motive.

“Armstrong has failed to show that the police acted in bad faith when they failed to collect the surveillance video from the AM/PM. The testimony of the officers indicates that the video went uncollected due to mere oversight. Armstrong has presented no evidence that the police had an improper motive. At most, Armstrong has shown that the investigation was incomplete or perhaps negligently conducted, but that is not enough to show bad faith.”

With that, the Court upheld his conviction.

My opinion? I understand the Court’s opinion insofar as the Prosecution should not be burdened with providing exculpatory evidence, especially if that evidence is unimportant – or not material – to the larger issues of guilt.

However, I would object to the AM/PM employee  discussing the  video as facts that are not admitted into evidence. Under this objection when the attorney claims that “the question assumes facts not in evidence,” what he is really saying is that the facts that are being presented to the witness are presumably not yet in evidence and therefore, how can this witness properly answer the question if those facts have not been put before this jury? These kinds of questions

No-Contact Order Held Invalid

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In State v. Torres, the WA Court of Appeals decided a lower court improperly imposed a 5-year no contact order between the defendant and his son in a Witness Tampering prosecution.

BACKGROUND FACTS

Mario Torres is the father of M.T. (born 2003) and N.B. (born 2012). N.B. lived with his mother. However, on the morning of December 22, 2014, he was left in Mr. Torres’s care while N.B.’s mother went shopping. M.T. was also with Mr. Torres at the time. On December 23, N.B.’s mother and grandmother took him to receive medical care after he was found unresponsive. N.B. died a few days later. N.B.’s injuries suggested his death was a homicide.

Police Interview With M.T.

Part of law enforcement’s investigation into N.B. ‘s death involved a forensic interview of M.T. He originally told the interviewer that N.B. was responsive while in Mr. Torres’s care and ate some “Chicken McNuggets” during this time. But M.T. later told the interviewer this was not true. M.T. then said that he heard a loud bang while Mr. Torres was caring for N.B. and N.B. started loudly crying. Mr. Torres later told M.T. he had accidentally stepped on N.B. ‘s leg causing him to fall and strike the bedpost. M.T. never saw N.B. get up again after this. M.T. told the interviewer that both his parents approached him at his grandmother’s home earlier that day and told him to make up a story about N.B. eating Chicken McNuggets, and not mention that N.B. had bumped his head. Additionally, Mr. Torres allegedly told M.T. to “make up lies” about what happened.

Police interview with Mr. Torres.

The police talked to Mr. Torres the day after M.T’s interview. After being advised of his Miranda rights, Mr. Torres denied injuring N.B. but admitted N.B. fell and struck his head on a bedpost. Mr. Torres also admitted he did not want M.T. to talk to the police and had a private conversation with him to outline what M.T. would say. Mr. Torres claimed he told M.T. to tell the truth and say Mr. Torres did not cause the injuries to N.B. He did not offer any specific details on what M.T. was told.

Criminal Charges, Guilty Verdicts, Sentencing & the 5-Year No Contact Order.

The State charged Mr. Torres with one count of Witness Tampering under RCW 9A.72.120(l)(c). Although the case progressed toward trial, Mr. Torres ultimately pled guilty and entered an Alford plea on February 25. His case then proceeded directly to sentencing. During the sentencing colloquy, the court ultimately imposed a five-year no-contact order, prohibiting Mr. Torres from all contact with M.T. except by written mail. Mr. Torres also received a sentence of six months and $1,960 in court fines. Torres appealed.

For those who don’t know, a no contact order is also called a restraining order, and prohibits a person from being in physical or verbal contact with another person. The court must order the no contact agreement, and usually specifies how many feet, or yards, away the individuals must stay from one another. If broken the defendant may receive a fine, or jail time with a felony or misdemeanor charge.

COURT OF APPEALS’ DECISION AND REASONING.

The Court began with stating RCW 9.94A.505(9) authorizes a trial court to impose crime related prohibitions as sentencing conditions. A No-Contact Order is such a prohibition. The court further reasoned that conditions interfering with fundamental rights, such as the right to a parent-child relationship, must be “sensitively imposed” so they are “reasonably necessary to accomplish the essential needs of the State and public order.” A trial abuses its discretion if the trial court employs the wrong legal standard.

The Court further reasoned that here, at sentencing, the trial court imposed a five-year no-contact order, prohibiting almost all contact between Mr. Torres and his son. The Court reasoned that in so doing, the court failed to acknowledge Mr. Torres’s fundamental right to parent his child or explain why a five year prohibition on all personal contact was reasonably necessary to further the State’s interests. “This was error, even under the deferential abuse of discretion standard,” said the Court of Appeals. “While the trial court certainly can impose a no-contact order to advance the State’s fundamental interests in protecting children, it must do so in a nuanced manner that is sensitive to the changing needs and interests of the parent and child.”

“The State suggests we can infer the reasons for the court’s no-contact order from the record. We disagree. The record before us is scant. The trial judge did not explain why he decided to impose a no-contact order that was 10 times longer than what was requested by the State. We are unable to discern the court’s likely reasoning from the limited information presented. It is the trial court’s duty to balance the competing interests impacted by a no contact order.”

With that, the WA Court of Appeals remanded the case back to the trial court for further reconsideration – and instructions – on re-creating the no contact order.

“How to Create a No Contact Order.”

This portion of the Court opinion was very instructive to the lower court. For example, it was instructed that the trial court shall first address whether a no-contact order remains reasonably necessary in light of the State’s interests in protecting M.T. from harm. If it is, then the court shall endeavor to narrowly tailor the order, both in terms of scope and duration. When it comes to the order’s scope, the court shall consider less restrictive alternatives, such as supervised visitation, prior to restricting all personal contact between Mr. Torres and his child. In addition, the court’s order should recognize that “what is reasonably necessary to protect the State’s interests may change over time.” Accordingly, the court shall consider whether the scope of the no-contact order should change over time. The court shall also reconsider whether the ultimate length of the no-contact order remains appropriate. Finally, the trial court should keep in mind that a sentencing proceeding is not the ideal forum for addressing parenting issues.

My opinion?

This was a great decision. I’m impressed that the Court of Appeals gave specific instructions on creating no contact orders in the future. Good opinion.