Category Archives: Rape

Misconduct at Closing

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In In re Personal Restraint of Phelps, the WA Court of Appeals Div. II held (1) expert testimony is required if the State intends to rely on the grooming process to prove and argue  its case, (2) the Prosecutor improperly argued facts not in evidence about sexual grooming, and (3) this error resulted in prejudice to the defendant that requires a reversal of his convictions.

BACKGROUND

On June 8, 2012, Defendant Todd Phelps went to  trial on his charges of third degree rape and second degree sexual misconduct with a minor. In February 2011, the victim AA was a minor who began playing softball on her high school team. Mr. Phelps was one of her coaches. Apparently, Mr. Phelps groomed AA into having sexual relations with him.

At trial, the State did not present any expert or lay testimony about the grooming process.

In closing argument, however, the prosecutor discussed some of the topics that he questioned the jurors about during jury selection, including the grooming process:

“Then we talked about grooming. We talked about the process of grooming. And some people came up with examples of how someone who is grooming is going to be nice. They are going to try to get the trust of someone. They are going to try and isolate that person so that they can do an act against this person who is being groomed. And it’s not just the person who is being groomed, but it’s other people that are around as well that are being groomed.”

The prosecutor referred to the concept of grooming throughout his argument. For example, after talking about the alleged physical contact that occurred before the rape, the prosecutor argued,

“What is all this stuff that’s going on? What is all this physical contact between a coach and a student athlete? It’s grooming; it’s okay, every time I touch you, it’s okay, it’s okay. Eventually, it becomes the norm. The grooming isn’t in the open, folks. When people groom, they don’t do it so everybody can see. That’s not the way it works. It wouldn’t be called grooming. It would be called a crime because he’d be caught all the time.”

The prosecutor further discussed how the grooming process took place over time and that, as part of it, Phelps told AA stories about how his wife refused to sleep in the same bed with him, how his wife had made out with another man, and other statements about his wife that were attempts to make AA sympathetic to him. The prosecutor then commented about Phelps’s sexual comments to AA and his physical contact with her, stating that “these are the things that are going on that she’s being told and groomed with throughout their contacts.” After discussing MM’s father’s testimony about Phelps bragging about his ability to control AA’s emotions, the prosecutor argued,

“So let me talk about grooming again. At this point, point of the rape, [AA] is pretty much isolated from her entire family until she eventually is allowed to move with her aunt. Remember the stories about her family, her grandma, her cousin, her aunt. She’s told these sex stories by the defendant. She’s told to break up with her boyfriend, don’t talk to your counselor. The defendant is meeting with her in private with other students, but no adults around. He has made her feel important throughout this entire incident. She felt he was the only one she could talk to.”

These types of comments from the Prosecutor – and many others about grooming – were repeated and emphasized throughout closing argument.

The jury found Phelps guilty of second degree sexual misconduct with a minor and third degree rape. Phelps appealed on the issue of whether the prosecutor committed misconduct by introducing the concept of grooming in closing argument without any evidentiary support or foundation; i.e., arguing that the prosecutor argued facts outside the record.

THE COURT’S ANALYSIS

The court reasoned that the 6th Amendment to the United States Constitution guarantees a defendant a fair, but not an error-free, trial. The burden to establish prosecutorial misconduct is on the defendant, who must show that the prosecuting attorney’s conduct was both improper and prejudicial. Prosecutorial misconduct is grounds for reversal only when there is a substantial likelihood that the improper conduct affected the jury.

Expert Testimony of Grooming.

The Court said expert testimony is required if the State intends to rely on the grooming process to prove and argue its case. Although the discussion of grooming in jury selection demonstrates that some of the jurors in this case had some general knowledge of grooming, this does not demonstrate that the jurors had the nuanced understanding of the grooming process that would enable them to understand its effect on things such as AA’s failure to report and how the grooming process may be used to influence others in order to increase the defendant’s credibility or undermine the victim’s credibility. Furthermore, the Court reasoned that the psychological complexities in understanding and evaluating the grooming process demand expert testimony to aid the jury.

Ultimately, the Court reasoned that because the prosecutor’s grooming argument encompassed issues that are beyond the jury’s common understanding, Phelps is correct that the prosecutor should have presented expert testimony on this matter if the State wished to rely on these concepts in closing argument.

Arguing Facts Not in Evidence.

The Court held that the Prosecutor’s use of the grooming concept in closing argument without first presenting testimony about the grooming process was misconduct.  There was no evidence of any kind before the jury explaining the grooming process, the potential purposes of grooming beyond achieving a sexual relationship with AA, or the effects of grooming on those around AA. Consequently, the State was required to present expert testimony on this aspect of the grooming process because these concepts were not within the common understanding of the jury. For that reason, the prosecutor was arguing facts that were not in evidence.

Flagrant, Ill-Intentioned & Incurable Prejudice.

The Court reasoned that the Prosecutor’s argument, without any evidentiary support, was also clearly prejudicial because it touched on credibility determinations that were key to this case given the circumstantial nature of the case and the lack of direct evidence of the criminal acts. The prosecutor’s argument focused on how Phelps’s grooming behaviors affected AA’s behavior and how those around AA perceived AA. It also was intended to rebut Phelps’s claims that his contact with AA was merely an innocent attempt to help a troubled young woman. Thus, this argument had a strong relationship to AA’s and Phelps’s credibility and potentially influenced the jury’s credibility determinations.

Finally, the Court reasoned that any resulting prejudice from the Prosecutor’s statements at closing argument could not have been cured by a jury instruction:

“We hold that Phelps has shown that the prejudice could not have been cured by an instruction. The repeated and pervasive use of the grooming concept makes it less likely that the jury followed this instruction, particularly when the grooming evidence was relevant to the core credibility issues in a case with no direct evidence of the actual crimes. Thus, Phelps has established prosecutorial misconduct.”

With that the Court reversed Phelps’ conviction.

My opinion? Good decision. As a practice, expert witnesses are required to testify about issues which are beyond the common understanding of jurors. The topic of grooming sexual assault victims certainly requires an expert. Period.

 

“Joining” Multiple Offenses

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In State v. Bluford, the WA Court of Appeals Division I decided a trial court correctly joined a defendant’s multiple counts of robbery for one trial. The similarities between the crimes were adequate for the offenses to be cross admissible to establish a modus operandi.

The State charged Charles Bluford with nine felony counts. These included seven counts of Robbery in the First Degree plus a charge of Rape in the First Degree of one victim and Indecent Liberties of a separate victim.

The State initially charged Bluford under three different cause numbers, but moved to join all the counts for trial. Bluford moved to sever five of the counts from the others. The court considered these cross motions at the same hearing and joined all counts for trial.

The jury found Bluford guilty of eight counts and acquitted him of one count of Robbery. It sentenced him to life without the possibility of release. Bluford appeals.

The Court of Appeals began by discussing the statute and court rule regarding the “joinder” of criminal offenses. RCW 10.37.060 states the following:

When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated.

Also, CrR 4.3 says the following:

Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

The court reasoned that the joinder rule promotes the public policy goal of conserving judicial resources. Also, joinder is appropriate unless it is so “manifestly prejudicial” that it outweighs the need for judicial economy. In other words, courts may not join offenses if it would prejudice the defendant.

The court applied the four-factors guide from State v. Cotten to determine whether prejudice results from joinder:

(1) the strength of the State’s evidence on each of the counts; (2) the clarity of the defenses on each count; (3) the propriety of the trial court’s instruction to the jury regarding the consideration of evidence of each count separately; and (4) the admissibility of the evidence of the other crimes.

The Court applied the Cotten factors.

First, the Court of Appeals reasoned that the trial court correctly determined that the strength of the State’s evidence for each count was equivalently strong.

Second, Bluford asserted a general denial for each count. Therefore, he could not have been prejudiced by inconsistent defenses because his defenses were all the same.

Third, Bluford argues that the court’s instructions to the jury at the end of the case did not instruct the jury that it could not consider the evidence of other crimes as propensity evidence. However, Bluford failed to request such an instruction. And the trial court is not required to give such an instruction if the defendant fails to request one.

Fourth, the court determined that the evidence of each count would be cross admissible for the other counts for the purpose of showing modus operandi. It reasoned that although ER 404(b) prohibits introducing evidence of other bad acts as propensity evidence, such evidence is admissible for other purposes, such as proof of motive, plan, or identity. Under the modus operandi exception, evidence of other bad acts is admissible to show identity if the method employed in the commission of crimes is so unique that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged. The modus operandi must be so unusual and distinctive as to be like a signature.

In Bluford’s case, the trial court determined that the crimes were cross admissible for the following reasons:

Each incident occurred within an approximately two month period. Each incident occurred during hours of darkness. Each incident occurred in the Seattle metro area. Each incident occurred in a residential area. The defendant was a stranger to each victim. In each incident, the victims were alone when  . . . a male approached with a handgun and gave verbal demands to the victims. The descriptions of the handgun by the victims are similar. Four of the victims gave a description of the vehicle, which matches the vehicle the defendant was later found inside. Two of the three female victims were sexually assaulted during the course of the robberies. Although one of the female victims was not sexually assaulted during the robbery, she ran away at the time of the robbery, thereby limiting the opportunity for the defendant to sexually assault her . . . Therefore, although none of the incidents are a carbon copy of the others, the incidents are strikingly similar.Additionally, in each case the perpetrator approached the victim as he or she exited a car. And when the victim did not cooperate, the perpetrator forcefully took his or her property or assaulted the victim.

Consequently, modus operandi was proven. Finally, because Bryant failed to renew his motion to sever during trial, he technically failed to preserve for review the issue of severance.

Bluford’s convictions were upheld. However, the Court of Appeals vacated his sentence of life without the possibility of release and remanded for resentencing.

My opinion?

At trial, Prosecutors commonly try joining a defendant’s multiple offenses. As stated above, doing so creates judicial efficiency and shows propensity evidence under ER 404(b). Still, competent defense attorneys should try to sever multiple counts anyway; and most important RENEW THE MOTION DURING TRIAL. Failing to do so effectively waives the issue to be preserved for appeal.

State v. Castillo-Lopez: Substituting Counsel & Continuances

In State v. Castillo-Lopez, Division II of the WA Court of Appeals upheld that the trial court’s decision to deny a motion to continue a trial on five counts of Rape of a Child in the Second Degree to allow the defendant’s retained attorney to replace the defendant’s court appointed attorney.

Mr. Castillo-Lopez was charged with having sexual intercourse with his step-daughter “T.S.” on five separate occasions between January 2012 and February 2013. T.S. turned 12 years old in 2012.

The court set the case for trial on July 7, 2014.

On June 19, 2014, Castillo-Lopez argued motions for substitution of counsel and for a continuance of the trial date. Castillo-Lopez argued the case should be continued because his new attorney needed time to prepare and the parties were still awaiting DNA evidence. Although the trial court ruled it would grant the substitution, the court denied the continuance. The Court referenced  “a statute that says the court has to consider also the impact of this on the child . . . (RCW 10.46.085).

On July 3, a different judge presided over a trial confirmation hearing. And again, the trial court made it clear that it would allow the substitution, but would not grant the continuance.

The matter proceeded to trial. The jury found Castillo-Lopez guilty of five counts of rape of a child in the second degree. The trial court sentenced Castillo-Lopez to a minimum of 500 months’ confinement.

Castillo-Lopez appealed on the argument that the trial court denied him his counsel of choice and abused its discretion when it denied his motions to substitute counsel that were dependent upon the court granting his motions to continue the trial date.

The Court of Appeals, however, disagreed. It decided the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. In considering these types of motions, a trial court should consider all relevant information because “these situations are highly fact dependent and there are no mechanical tests that can be used.” State v. HamptonFinally, it reasoned that  trial courts should consider all relevant information including the 11 factors described in the most recent version of LaFave’s Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

(5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial;

(11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Here, the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. It considered relevant information and applied a number of the above-listed factors in making its decision. It also reasoned Castillo-Lopez never expressed dissatisfaction with his appointed counsel. Castillo-Lopez did not want a continuance. Again, the trial court made it clear it would grant the motion for substitution of counsel, but without a continuance. Thus, the denial of the motion for a continuance on July 3, 2014 was not an abuse of discretion because there were no substantial or compelling reasons to continue the trial date and the benefit to Castillo-Lopez was outweighed by the detriment of a continuance on the child victim.

My opinion? The Court should have granted at least  one continuance. Although the crimes were heinous, that’s not the point. Under the 6th Amendment, all defendants deserve a fair trial and to be represented by counsel of their choosing. It takes a lot of time to prepare for jury trial in a multi-count sex case involving Class A felonies. At least one continuance is warranted.

State v. Hampton: You Can’t Replace Your Attorney at 11th Hour.

In State v. Hampton, the WA Supreme Court decided  It was not an abuse of discretion for a trial judge to deny a defendant’s request to delay trial to allow him to replace his public defender with a private attorney.

Mr. Hampton was charged with Rape in the Second Degree. On the eve of his trial, Hampton moved to replace his appointed counsel with a new private attorney on the condition that the trial be continued so his new counsel could prepare. The trial court denied the continuance, so Hampton proceeded with his previously appointed counsel. He was ultimately convicted of Rape in the Third Degree.

The Court of Appeals reversed his conviction, holding that the trial court’s decision violated Hampton’s constitutional right to his choice of counsel because it considered Hampton’s reasons for wanting a new attorney. The Court of Appeals relied on United States v. Gonzalez-Lopez, a United States Supreme Court opinion that held that when a defendant’s right to choice of counsel is erroneously denied, a defendant need not show prejudice in order to obtain relief.

Here, the WA Supreme Court overruled the WA Court of Appeals and upheld Mr. Hampton’s conviction. It reasoned that a trial court has wide latitude to grant or deny a motion to delay trial related to a defendant’s request to change counsel. In making such a decision, trial courts should consider the factual context for the motion, which can include among other factors-a defendant’s reasons for dissatisfaction with existing counsel.

In this case, reasoned the court, the trial court did not abuse its discretion when it denied Hampton’s request to delay trial to allow him to replace his counsel given that (1) he did not make his request until the day his trial was scheduled to start, (2) his trial had already been continued once, (3) the victim/witness opposed the continuance, and (4) he did not explain his dissatisfaction with appointed counsel.

The WA Supreme Court also stated that trial courts can consider all relevant information, including the 11 factors described in the most recent edition of the LaFave Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

( 5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial; and

( 11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Based on that, and under the circumstances, the WA Supreme Court concluded that the trial court in this case did not error by considering the defendant’s reasons for dissatisfaction with his appointed attorney in addition to the other circumstances, such as the lateness of the request, the previous continuance granted by the court, and the victim/witness’s opposition to further delay.

Consequently, the WA Supremes reversed the Court of Appeals and held that the trial court did not abuse its discretion when it considered – among other factors – the defendant’s reasons for his dissatisfaction with his appointed counsel.

My opinion? Trial judges are very, very suspicious and pessimistic when defendants try withdrawing/replacing their defense attorney at the 11th hour before trial. Judges know that Prosecutors work hard – and they do – to bring witnesses together and prepare for trial. Judges also know want to avoid any witness tampering and/or intimidation on the part of defendants who may have mistakenly believed they could strike a BBD (bigger, better deal) right before trial. That line of thinking on the part of defendants is not always true, in fact, it’s rarely true. Believe me, once a competent Prosecutor prepares a trial, they’re rarely convinced of going anywhere but forward with their prosecution.

State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing

In State v. O’Dell,  the Washington Supreme Court held that a defendant’s youthfulness can support a lower prison sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it,  “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. Good decision.

State v. Gauthier: The “Washout” Rule for Felony Convictions

 

Many clients approach me on the question of when prior felony convictions “Washout” from a Defendant’s offender scores. The recent case of State v. Gauthier is a good place to answer that question.

In Gauthier, the WA Court of Appeals Division I decided (1) the prosecutor’s closing arguments were fair,  (2) Gauthier received effective assistance of counsel, and (3) trial court properly calculated Gauthier’s offender score.

At trial, Mr. Gauthier was found guilty of Rape in the Second Degree. On appeal, he argued that the trial court improperly calculated his offender score by failing to recognize that his prior convictions “washed out” pursuant to RCW 9.94A.525(2)(c).

Some background is necessary. Under the “washout” provision, RCW 9.94A.535(2)(c), prior “Class C” felony convictions are excluded in a defendant’s offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of the judgment and sentence, the offender spent five consecutive years “in the community” without committing any crime that subsequently results in a conviction.

In Gauthier’s case, he had five prior class C felony convictions. His last release date happened in June 2007. However, he did not remain crime free for five years. He was charged with the Rape Second Degree on March 13, 2009, and taken into custody to the King County Correctional Facility on July 23, 2010. There, he remained through his first trial on May 2011 which resulted in a conviction. He was subsequently sentenced on July 8, 2011. Consequently, the sentencing court properly calculated his offender score as a five (5) based on his five prior class C felony convictions.

Furthermore, at his sentencing on February 14, 2014, Gauthier argued that his five prior class C felonies should not be included in his offender score because he spent 43 months in custody before he was convicted again on the present offense. He claimed that under the “washout” statute, the “in the community” phrase includes the 43 months he spent in custody on this offense, thus his offender score is zero not five. The sentencing court rejected this argument, calculated his offender score as five, and sentenced him to 120 months with credit for all time served back to July 2010, the date he was first arrested.

Here, and similar to the trial court, the WA Court of Appeals rejected Gauthier’s arguments and also rejected Gauthier’s reliance on State v. Ervin, a somewhat recent case where the WA Supreme Court decided in favor of the defendant James Erwin’s arguments  that his 17 days of custody did not interrupt the requisite  5-year washout period:

“We have found no case, and Gauthier cites to none, where Ervin’s limited holding was applied to time spent in confinement while awaiting resolution of a felony charge. That is the precise circumstance present here. As the State correctly points out, Gauthier’s interpretation creates an absurd scenario—a defendant’s offender score will actually go down while he is in custody pending trial or pending sentencing. Indeed, that is an absurd result and a result we are confident the legislature did not intend.”

Simply put, if Gauthier had remained in the community for five years after June 2007 and remained crime free for those five years, his prior class C felony convictions would not count in his offender score after June 2012. It would have “washed out” under RCW 9.94A.535(2)(c). However, Gauthier’s 43 months in custody rendered hopeless any arguments that his priors would wash out.

The Court of Appeals upheld affirmed the trial court’s Judgment & Sentence and sentenced him to 120 months of prison.

State v. Abitia: Sexual Assault Advocate’s Testimony Was Improper

In State v. Abitia, the WA Court of Appeals Division I decided that it was improper testimony and reversible error that an expert witness for the State – a Sexual Assault Advocate, no less – testified that people who molest children often do not tell the truth and when subjected to polygraph testing and often admit to committing more sexual abuse than the child victim reported.

The facts were such that defendant Raymond Abitia went to trial on one count of Rape of a Child in the Second Degree and one count of Distribution of a Controlled Substance to a Minor. The alleged victim was Abitia’s daughter, KM. At trial, KM disclosed the abuse after an incident in Skagit County that occurred shortly after she turned 14 years old.

One of the State’s witnesses was Joan Gaasland-Smith, the sexual assault case specialist – also called a Sexual Assault Victim Advocate – for the Whatcom County Prosecutor’s Office. Gaasland-Smith was qualified as an expert to discuss child sex abuse in general. For those who don’t know, “Sexual Assault Victim Advocates” are professionals trained to support victims of sex crimes. Advocates offer victims information, emotional support, and help finding resources. Sometimes, advocates attend court and pretrial interviews with victims. Advocates may also contact organizations, such as criminal justice or social service agencies, to get help or information for victims. Some advocates staff crisis hotlines, run support groups, or provide in-person counseling.

Gaasland- Smith testified that it is not unusual for children to delay disclosure. She said while there is no single reason that applies in every case, there are many reasons a child may not immediately disclose. A perpetrator may have offered the child rewards, money, or special attention in exchange for silence. The child may value the relationship with the perpetrator, fear being seen as abnormal, or think that the sexual contact feels good.

Up to this point, there was nothing particularly objectionable about Gaasland-Smith’s testimony. KM did not disclose abuse until the Skagit County incident and even then she resisted disclosing it to the police. Abitia’s defense strategy was to challenge KM’s credibility. It is generally permissible for a jury to hear expert testimony explaining why delayed disclosure does not necessarily mean the victim lacks credibility.

But in response to the prosecutor’s next question, Gaasland-Smith began to veer toward generalities about perpetrators. She said, “Kids can be told by perpetrators that, urn, that other adults believe adults, they won’t necessarily believe a child.” Abitia objected to “this whole line of questioning as to what do other sexual predators do. Abitia’s attorney objected to the testimony.

The court overruled the objection, stating that “what kids can be told by perpetrators … is appropriate testimony for an expert witness.” The court warned the prosecutor to “be very cautious so that generalization does not directly or indirectly suggest to the jury that that is what has happened” in this case.

Gaasland-Smith went on to discuss reasons why children may be afraid to disclose. She testified that most of the time, children do not disclose everything all at once. When asked about the basis of her knowledge, she answered that sexual deviancy evaluations show it is common to discover that “more happened than the child ever told.” In the course of this answer, Gaasland-Smith testified that a sexual deviancy evaluation includes a lie detector test because “oftentimes people who do this kind of thing don’t tell the truth.”

The jury convicted Abitia as charged. The case was appealed on the issue of whether the expert witness’s testimony was improper.

The Court of Appeals reasoned “Perpetrator Profile Testimony” is improper because it “clearly carries with it the implied opinion that the defendant is the sort of person who would engage in the alleged act, and therefore did it in this case too.” Gaasland-Smith’s line of testimony about what perpetrators do should have been cut off when the objection was first raised. Her opinion that sex offenders lie about their conduct implied that Abitia was lying when he denied having sexual contact with KM. No witness may testify as to an opinion on the veracity of the defendant, either directly or inferentially.

The Court also reasoned that Gaasland-Smith’s testimony that offenders can be trusted to tell the truth only when they are subject to lie detector tests was also unduly prejudicial. Ordinarily, polygraph evidence is inadmissible absent stipulation by both parties because the polygraph has not attained general scientific acceptability. Therefore, Gaasland-Smith’s improper reference to lie detectors bolstered her opinion that sexual offenders, as a class, are liars.

The Court of Appeals reversed the conviction.

My opinion? Excellent decision. It indeed invades the providence of the jury for experts to discuss “Perpetrator Profile Testimony” in the context of jury trials. It sways jurors far too much, and leads to unfair jury trials like the one above.

State v. Hardtke: Court Limits Costs of Pretrial Monitoring

In State v. Hardtke, the WA Supreme Court decided that although a trial court has the authority under RCW 10.01.160 and CrR 3.2 to impose the cost of pretrial electronic alcohol monitoring, the amount is capped at $150.00.

Here, Mr. Hardtke was charged with two counts of Rape in the Second Degree, one count of Assault Second Degree, two counts of Assault Fourth Degree, and Malicious Mischief Third Degree. All were alleged to be acts of domestic violence that took place while Hardtke claimed he was blacked out from alcohol abuse.

At arraignment, the trial court imposed conditions that Hardtke not consume alcohol. To ensure his compliance with this condition, Hardtke was required to wear a transdermal alcohol detection (TAD) electronic alcohol monitoring bracelet while awaiting trial. Hardtke objected multiple times to paying for the cost of the bracelet, but he nevertheless wore the bracelet as a condition of his release.

Eventually, Hardtke pleaded guilty to amended charges, and as part of his sentence he was ordered to reimburse the county for the cost of the alcohol monitoring; which totalled $3,972.00. Hardtke objected and appealed the court’s ruling. The case ended up in the WA Supreme Court.

In reaching its decision, the WA Supreme Court reasoned that RCW 10.01.160 authorizes courts to impose “pretrial supervision” costs on both convicted and nonconvicted defendants; however, it expressly limits pretrial supervision costs to $150. The court further reasoned that paying the costs was unreasonable:

Hardtke himself did not arrange for the TAD monitoring and did not agree to pay a third-party company for the service. On the record before us, the sentencing court imposed a cost on Hardtke for pretrial electronic alcohol monitoring in order ensure compliance with the release condition that he not consume alcohol. We find no support for the State’s argument under CrR 3.2.

The court further reasoned that TAD monitoring falls under the plain meaning of “pretrial supervision.” This includes work release, day monitoring, or electronic monitoring. The court emphasized that TAD monitoring operates like other monitoring devices, such as GPS (global positioning system) monitoring. It ensures compliance with the pretrial release conditions by supervising Hardtke’s conduct and reporting his blood alcohol levels. This monitoring, the court said, is functionally analogous to requiring a defendant awaiting trial to physically check in with the court or county probation officer to demonstrate that pretrial release conditions have been complied with.

The court concluded that RCW 10.01.160 limits the court’s authority to impose costs for pretrial supervision to $150. “Because we hold that the TAD monitoring costs imposed on Hardtke were for pretrial supervision, and because those costs were greater than $150, the trial court exceeded its statutory authority by imposing nearly $4,000 for Hardtke’s pretrial supervision.” The Court remanded Hardtke’s case back to the trial court with instructions that costs for pretrial supervision in this matter not exceed $150.00.

My opinion? Good decision. Defendants should not pay an arm and a leg simply to be monitored by courts, ESPECIALLY if there’s statutory authority stating that pretrial supervision shall not exceed $150. Getting access to justice is difficult enough. Good, straightforward opinion.

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

On March 2, 2015, the Washington House Appropriations committe voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probaly unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

State v. W.R.: Defendants Do NOT Need to Prove Consent in Rape Cases

Good opinion.

Overruling the decisions in State v. Camara and State v. Gregory, the WA Supreme Court held that it violates due process to make the defendant prove the alleged sexual act in question was consensual when the crime charged is Rape in the Second Degree by Forcible Compulsion.

http://www.courts.wa.gov/opinions/pdf/883416.pdf

The defendant, a minor named W.R., was found guilty at his bench trial of Rape in the Second Degree by Forcible Compulsion. The event in question was a sexual encounter between W.R. and J.P. that occurred on January 2, 2011, while J.P. was visiting her aunt, who resided with W.R. and his sister. J.P. was also a minor at the time. Throughout trial, the juvenile court judge found W.R. lacked credibility. Consequently, the court explained that the State had proved rape in the second degree beyond a reasonable doubt and that W.R. had failed to prove the defense of consent by a preponderance of the evidence.

W.R. appealed, arguing the juvenile court erred in allocating to him the burden of proving by a preponderance of the evidence that the act was consensual.

The WA Supreme Court granted review of the case on this one issue: When the State charges the defendant under a rape statute that includes “forcible compulsion” as a necessary element of the crime, does due process forbid requiring a criminal defendant to prove consent by a preponderance of the evidence?

The court reasoned that once a defendant asserts a consent defense and provides sufficient evidence to support the defense, the State bears the burden of proving lack of consent as part of its proof of the element of forcible compulsion. It analyzed the decision in State v. Camara and other cases which applied a “negates” analysis. In short, the Court held that when a defense necessarily negates an element of the crime, it violates due process to place the burden of proof on the defendant. It stated, “The key to whether a defense necessarily negates an element is whether the completed crime and the defense can coexist.”

Furthermore, the court said other courts have recognized that when a person consents to sexual intercourse, such consent negates forcible compulsion. In addition, the defendant cannot be burdened with proving consent by a preponderance of the evidence, as the burden must remain on the State to prove forcible compulsion beyond reasonable doubt.

We hold that consent necessarily negates forcible compulsion. For this reason, due process prohibits shifting the burden to the defendant to prove consent by a preponderance of the evidence. While the defendant may be tasked with producing evidence to put consent in issue, such evidence need only create reasonable doubt as to the victim’s consent. Our prior decisions in Camara and Gregory are inconsistent with this holding; we thus must explain why these cases must be overruled.

My opinion? Good decision, on many levels. It’s satisfying that the WA Supremes overruled bad caselaw and reasoned their way back to the one of the oldest standards in American jury trial jurisprudence: it is the State, and not the defendant, who carries the burden. Making the defendant carry this burden violates due process.

Although it appears Camara and Gregory tried to carve out an exception to this general rule in much the same way a defendant must prove self-defense by a preponderance of the evidence if charged with Assault, making a defendant prove consent in rape and sex cases is far too difficult to prove. This is especially true when the Rape-Shield statute suppresses information about a victim’s past sexual history. Good decision, WA Supremes.