Category Archives: Self-Incrimination

Pre-Arrest Silence & Business Records Exceptions to Hearsay Rule

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In State v. Magana, the WA Court of Appeals held (1) the Fifth Amendment is not an obstacle to the State’s introduction of a suspect’s pre-arrest silence as evidence of guilt, and (2) the State failed to lay a proper evidentiary foundation for the Lineup ID Report, however, the erroneous admission of the document was harmless error.

Sergio Magana Jr., an adult, met met fourteen-year-old Y.L. through Facebook. After exchanging text messages, Y.L. and Mr. Magana made plans to meet at Y.L.’s home. Mr. Magana wanted to be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside Y.L.’s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told Y.L. not to mention his name and to delete all of their text messages because her “age scared him.”
After approximately two weeks, Y.L. reported Mr. Magana’s conduct to the police. Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text messages could be extracted. The police then began looking for Mr. Magana.
After about six weeks, Mr. Magana made contact with the police and spoke to a detective over the telephone. During the call, Mr. Magana arranged to meet with the police. However, he never showed up for his appointment. About a month later, Mr. Magana finally met with a police detective in person. He was advised of his Miranda rights and acknowledged that he had indeed met Y.L. over Facebook, but he denied having intercourse. Mr. Magana was charged with one count of third degree rape of a child. Following a mistrial and then a second trial, he was found guilty by a jury and sentenced by the trial court. Mr. Magana appealed.
1. PRE-ARREST SILENCE.
On appeal, Mr. Magana argued the jury should not have known about his failure to appear for his initial police interview. He claims this was an improper comment on his right to silence, in violation of the Fifth Amendment to the United States Constitution.
However, the Court of Appeals reasoned that the rule from the  United States Supreme Court’s Salinas v. Texas holds that the Fifth Amendment is not an obstacle to the State’s introduction of Mr. Magana’s pre-arrest silence as evidence of guilt. Furthermore, although Washington State’s Constitution typically provides more protections than the U.S. Constitution, “this is not an area where our state’s constitution affords greater protection than the federal constitution.”
Consequently, the Court of Appeals reasoned Mr. Magana was not under arrest or any sort of police custody. They said his scheduled police interview was voluntary, and to the extent Mr. Magana’s failure to appear for the interview was relevant, the State was entitled to present this evidence.
PHOTO LINEUP EVIDENCE.
Also on appeal, Mr. Magana argued the State’s photo lineup exhibit was hearsay and admitted into evidence without proper foundation. However, the State argued that the exhibit was a properly authenticated business record.
The Court reasoned that under RCW 5.45.020 and ER 803(6), a document may be admitted as a business record as long as a witness testifies to the document’s identity and mode of preparation, and explains that the document “was made in the regular course of business, at or near the time of the act, condition or event.”
Here, the exhibit at issue consisted of three pages. The first page is an array of six hand-numbered photos, one of which depicts Mr. Magana. The second page is entitled “Lineup ID Report,” which is a computer-generated report that documents biographical information, including dates of birth, for the six individuals depicted on the photo array. The third page is a copy of the written admonishment form Y.L. signed prior to reviewing the photo array.
However, The Court of Appeals reasoned that during the photo identification process, Y .L. failed to review the second page of the report. Also concerning was that at trial, no witness testimony was presented regarding the creation of the Lineup ID Report included on page two.
For these reasons, and because no foundation was laid for the Lineup ID Report, it was improperly admitted as a business record. Nevertheless, and given the entirety of the evidence, the erroneous inclusion of the Lineup ID Report was harmless error which did not impact the jury’s verdict.
The Court of Appeals affirmed Mr. Magana’s convictions, but remand to the trial court for resentencing.

Protective Sweeps of Homes

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In State v. Chambers, the WA Court of Appeals decided (1) the police’s “protective sweep” of the defendant’s home was improper because the defendant was arrested outside his home and the officers did not have specific facts that other armed individuals might be inside the defendant’s home, and (2) the defendant’s 3.5 Motion to Suppress statements made to police was rightfully denied because police scrupulously honored the defendant’s Fifth Amendment invocation of his right to remain silent.

In this case, defendant Lovett Chambers was drinking at the Feedback Lounge, a neighborhood bar in West Seattle that he frequented. Chambers was a convicted felon of African-American descent who moved to Seattle in 1989, worked in the construction industry, obtained degrees in computer science and started an IT business. In 1992, he got married and later purchased a house in West Seattle with his wife. A few years later, Chambers asked his wife to buy him a Colt .45 caliber semiautomatic handgun. She did so, apparently unaware that he was a convicted felon.

On the night of the incident, Mr. Chambers had numerous drinks at the Feedback Lounge. He carried and concealed his .45 pistol.   At some point, two Caucasian men entered the bar and began drinking. The gentlemen did not know Mr. Chambers. Later, all of the gentlemen departed the bar simultaneously and walked to their respective vehicles which were parked nearby each other in the parking lot.

For reasons unknown, words were exchanged between Chambers and the two gentlemen, who apparently uttered racial epitaphs to each other, Mr. Chambers, or both. One of the gentleman – Michael Travis Hood – pulled a shovel from his vehicle; apparently to defend himself from Mr. Chambers. However, Chambers shot Mr. Hood three times with his .45 pistol. Chambers walked away, got into his car and drove home in his BMW.

Mr. Hood died from lethal gunshot wounds to his back.

Seattle police arrested Chambers at his home at 10:49 p.m. Officer Belgarde read Chambers his Miranda rights at 10:51 p.m. Chambers smelled of alcohol. He was “swaying,” had trouble balancing, slurred his words, and was argumentative. Officer Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers’ home and seized a loaded .45 caliber handgun, a spare magazine, and the BMW keys. The police impounded the BMW. Later, officers interrogated Chambers and obtained numerous incriminating statements regarding the shooting.

The State charged Chambers with murder in the second degree of Hood while armed with a deadly weapon. Chambers asserted a claim of self-defense. Before trial, Chambers filed a CrR 3.6 motion to suppress the evidence seized from his house and the statements he made. The court denied the motion to suppress the evidence seized from the house. The court concluded the police “were authorized to enter the house to conduct a protective sweep to ensure their safety.” The court also denied the motion to suppress Chambers’ statements to police and reasoned his “right to remain silent was scrupulously honored” under Michigan v. Mosley.

The jury found Chambers guilty of the lesser-included offense of manslaughter in the first degree. By special verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-end standard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. Chambers appealed.

  1. Evidence Seized from the House Was Obtained Through a Unlawfully Conducted “Protective Sweep,” However, The Trial Court’s Decision to Deny Chambers’ Suppression Motion Was Harmless Error.

Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW.

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one of the narrow exceptions to the warrant requirement applies. One recognized exception to the warrant requirement is a “protective sweep” of the home. The court further reasoned that under Maryland v. Buie the U.S. Supreme Court describes a protective sweep as a limited cursory search incident to arrest and conducted to protect the safety of police officers or others.

The Court of Appeals decided the trial court erred in concluding the police had the authority to conduct a protective sweep of Chambers’ house. First, a warrantless search of “spaces immediately adjoining the place of arrest” without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home.

Here, the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress:

“The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse. The front door was open after the arrest and the police could see Sara was sitting on the living room couch watching television and remained in the living room.”

However, the Court of Appeals also ruled that the verdict would have been the same absent the trial court’s error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front of the Beveridge Place Pub on January 21, that he kept a .45 caliber gun under the passenger seat of the BMW, and that he used the Colt .45 to shoot Hood near Morgan Junction Park. For these reasons, the trial court’s decision to deny Chamber’s motion to suppress was harmless error.

2. Chamber’s Incriminating Statements Are Admissible.

On appeal, Mr. Chambers asserts the detectives did not “scrupulously honor” his Fifth Amendment right to remain silent. The court reasoned that the Fifth Amendment provides, in pertinent part, “No person shall be . .. compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court adopted “procedural safeguards” to protect the privilege and held that before questioning an individual in custody, the police must clearly inform the suspect of the following:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Here, the Court of Appeals decided that because the circumstances leading up to the police’s interview with Chambers show the police scrupulously honored Chambers’ right to cut off questioning, the court did not err in denying the motion to suppress the statements Chambers made.

The Court of Appeals reasoned that the record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did not want to talk to the police. The record establishes the police did not “ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights.” After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07 a.m. on January 22, the detectives did not ask Chambers any questions.

Nonetheless, on the way to Harborview, Chambers said he did not want to talk about what happened. While at Harborview, Chambers seemed to have “sobered up.” When they left Harborview approximately 45 minutes later, Detective Steiger advised Chambers of his Miranda rights again. Chambers stated he understood his rights and did not invoke the right to remain silent.

With that, the Court of Appeals concluded the undisputed facts support the conclusion that the right to cut off questioning was scrupulously honored.

The Court affirmed the jury verdict.

My opinion? The police should have advised Mr. Chambers of his Ferrier warnings, a topic which I have blogged many times. Ferrier warnings must be given if police officers seek to enter the home to conduct a warrantless search for evidence of a crime or contraband. Still, even if Ferrier warnings were given and Mr. Chambers denied the police entry into his home, his incriminating statements to police ultimately assigned harmless error to the unlawful search.

Cell Phone Spying Is Unlawful

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In State v. Novick, The WA Court of Appeals Division II held the Defendant committed Computer Trespass in the First Degree when he installed “Mobile Spy” software on the victim’s cell phone and sent commands to activate the recording feature of the program in order to intentionally record the victim’s private communications.

David Novick and Lisa Maunu began dating in December 2013. Novick bought her a new mobile phone on March 11, 2014, and set it up for her. Unbeknownst to Maunu, Novick installed an application called Mobile Spy on Maunu’s new phone. The application allowed a person to log onto the Mobile Spy website and monitor the phone on which the application was installed.

From the Mobile Spy website, a user could access all the information stored on the monitored phone, including text messages, call logs, and e-mails. The versions of Mobile Spy software also permitted a user to send commands to the targetted phone from a “live control panel” on the website. One such command allowed a user to activate the phone’s microphone and recording features and record audio into a file that could then be downloaded from the website.

Eventually, Novick was caught after his girlfriend Maunu became suspicious. In short, Maunu became concerned because Novick expressed specific knowledge about Maunu’s health conditions, medications, doctors’ appointments, and private conversations.

With the assistance of Novick’s employer, it was discovered that Novick had downloaded over 500 audio files from Mobile Spy, searched for GPS (global positioning system) locations, and searched for particular telephone numbers.

The State charged Novick with eight counts of Computer Trespass in the First degree and eight counts of Recording Private Communications based on Novick’s use of Mobile Spy to record Maunu’s conversations. At trial, Novick was convicted on all charges.

Novick appealed on arguments that (1) the State failed to provide sufficient evidence that he intentionally recorded a private communication, and (2) entry of eight convictions of each crime violated his right against double jeopardy because the correct unit of prosecution covers the entire course of conduct.

Ultimately, the Court of Appeals disagree with Novick and affirmed his convictions.

  1. THE PROSECUTION SHOWED SUFFICIENT EVIDENCE OF COMPUTER TRESPASS FIRST DEGREE.
First, the Court explained that Computer Trespass in the First Degree occurs when a person intentionally gains access without authorization to a computer system or electronic database of another and the access is made with the intent to commit another crime. The Court further reasoned that here, the underlying crime was Recording Private Communications. A person commits the crime of recording private communications when he intercepts or records private communications transmitted by any device designed to record and/or transmit said communications.
Second, the Court reasoned that a forensic review of Novick’s computer activity revealed that he intentionally logged into Mobile Spy’s webiste and sent commands from the website to Maunu’s phone. Also, Novick’s computer records showed that he visited the live control panel on Mobile Spy’s website, downloaded audio files collected from Maunu’s phone and intentionally recorded Maunu’s private communications.
Accordingly, the Court held that the State presented sufficient evidence that Novick committed the crime of Recording Private Communications, and with that, committed Computer Trespass First Degree.
2. NO EVIDENCE OF DOUBLE JEOPARDY.
Next, the Court rejected arguments that Novick’s multiple convictions for Computer Trespass and Recording Private Communications violated the prohibition against Double Jeopardy because the correct unit of prosecution for each crime covers the entire course of Novick’s conduct.
The Court began by saying the Fifth Amendment to the United States Constitution provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I, section 9 of the Washington Constitution says, “No person shall . . . be twice put in jeopardy for the same offense.” In short, explained the Court, these double jeopardy provisions prohibit multiple convictions for the same offense.
Furthermore, when a defendant is convicted for violating one statute multiple times, the proper inquiry is, “What unit of prosecution has the Legislature intended as the punishable act under the specific criminal statute?” The Court explained that in order to determine whether there is a double jeopardy violation, the question becomes “what act or course of conduct has the Legislature defined as the punishable act?” Consequently, the scope of the criminal act as defined by the legislature is considered the unit of prosecution.
The Court explained that the first step is to analyze the statute in question. If the statute does not plainly define the unit of prosecution, we next examine the legislative history to discern legislative intent. Finally, a factual analysis is conducted to determine if, under the facts of the specific case, more than one unit of prosecution is present.
Ultimately, the Court was not persuaded by Novick’s “plain language of the statute” argument the if the legislature intended a single unit of prosecution based on a course of conduct, it could have said so plainly.
“What matters is not what the legislature did not say, but what it did say,” said the Court. “The plain language of the statutes support the conclusion that the units of prosecution . . . are each separate unauthorized access and each recording of a conversation without consent.” The Court further reasoned that while Novick’s actions were somewhat repetitious, they were not continuous:
“On at least eight separate and distinct times, Novick logged onto Mobile Spy’s website, accessed Maunu’s phone by issuing a command through the live control panel, and downloaded at least eight different recordings of conversations between Maunu and various other people. Each access was separated by time and reflected a separate intent to record a separate conversation.”
The Court concluded that the State proved that Novick intentionally recorded eight private communications. Additionally, Novick’s actions constituted multiple units of prosecution, and therefore, his multiple convictions did not violate double jeopardy principles. Thus, the Court affirmed Novick’s convictions.
My opinion? On the one hand, it’s shocking that citizens can be convicted of felonies by accessing mainstream computer software. Shouldn’t the software itself be outlawed instead? On the other hand, I see how parents can legally using the same software to track their minor children’s whereabouts, conversations and activities. That type of activity os not illegal.
This case presents a very good example of an atypical computer crime. We see that Computer Trespass First Degree is very similar to standard Burglary charges in that the State must prove the Defendant intends to commit a crime once they gain access to the victim’s computer system or electronic database. Recording Private Communications is a crime.  Therefore, if a defendant records private communications after gaining access, they can be found guilty of Computer Trespass in the First Degree. Simple.
Computer crime cases require experts and/or lay witnesses who are competent in discussing these matters. Speaking for the defense, it’s usually best to hire experts familiar with computer forensics to determine if/when the said access was unlawful and/or intentional. Again, the State must prove intent.

Court Denies Prosecutor’s “Missing Witness” Jury Instruction in DUI Case.

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In State v. Houser, the WA Court of Appeals Division I held that in a DUI trial, Prosecutors are not entitled to a missing witness jury instruction if the real driver’s testimony would implicate themselves in the crime of failing to remain at the scene of a collision.

On May 19, 2013, defendant Steven Houser was involved in a car accident. He knocked on the door of nearby residence. The occupants observed Houser seemed excited and somewhat disoriented. He answered only a few questions and gave slow responses.

Emergency medical technicians arrived shortly after and attended to Houser. State Patrol Troopers noticed Houser had a swollen lip, bloodshot, watery eyes, and a flushed face. Houser told the trooper he had driven off the road and hit a pole. Houser said he had three to four beers that night and that he had been drinking all the way from a friend’s house to the scene of the accident.

The Trooper asked Houser if he was willing to submit to field sobriety tests. Houser agreed, and the trooper performed the horizontal gaze nystagmus test, which indicated impairment. Houser then agreed to a voluntary portable breathalyzer test. When the troopers arrested him, Houser became agitated and hostile, yelling, “I wasn’t even driving. My buddy was driving” and that they could not prove Houser was the driver.

After impounding the truck, the Troopers took Houser to the hospital and applied for a blood draw. He confirmed he had consumed alcohol within the last 24 hours, but denied driving. Houser’s blood draw registered a blood alcohol content level of 0.19, which was more than twice the legal limit. Houser was charged with felony DUI due to prior convictions.

At trial, Houser testified that a friend named “Gary” drove Houser’s truck because Houser had already been drinking beer. After getting some marijuana, they drove to a grocery store and Houser continued to drink beer. They then began driving to another friend’s house, and got into the accident along the way. Houser testified Gary was driving and Houser was in the passenger seat when the accident occurred. Houser remembered going off the road, but did not remember getting out ofthe truck. He testified that Gary did not remain in the truck, but did not know what happened to him. Houser did not know how Gary got out of the truck or whether he was injured. He testified he had not been in contact with Gary since the accident, did not know how to contact him, and had not tried to contact him.

None of this information about “Gary” was provided to the Prosecutor before Houser testified.

After both sides had rested, the Prosecutor requested a missing witness jury instruction. For those who don’t know, the “missing-witness” rule—which developed from a century-old U.S. Supreme Court decision, Graves v. United States, 150 U.S. 118 (1893)—allows one party to obtain an adverse inference against the other for failure to call a controlled witness with material information.

Houser objected to the jury instruction, noting he had been unable to conduct an investigation to find Gary. The trial court allowed the instruction and permitted the State to refer to the defense’s failure to call Gary to corroborate Houser’s  theory of the case in its closing argument. The jury found Houser guilty.

Houser appealed. He argued his conviction should be reversed because the trial court misapplied the missing witness doctrine and improperly instructed the jury.

The Court of Appeals agreed with Houser.

The Court reasoned that the missing witness rule permits the jury to infer that evidence or testimony would be unfavorable to a party if that “‘evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it'” and that party fails to do so.

The Court emphasized the missing witness instruction “should be used sparingly.” Furthermore, the limitations on the application of the missing witness rule are particularly important when, as here, the doctrine is applied against a criminal defendant. “The doctrine applies only if several requirements have been satisfied,” said the court.

The court also reasoned the rule does not apply where the missing witness’s testimony, if favorable to the party who would naturally have called the witness, would necessarily be self-incriminating. The court reasoned that here, Houser testified that Gary was driving, Houser was in the passenger seat when the accident occurred, and Gary did not remain in the truck.

“Houser also testified about his injuries,” said the Court. “Thus, if Gary corroborated Houser’s testimony, Gary would necessarily have incriminated himself for failing to remain at the scene of an accident.” Since the core of Houser’s defense was that he was not driving; and that giving a missing witness instruction and allowing the Prosecutor to comment on Gary’s absence here substantially undercut Houser’s defense.

While there was evidence sufficient to support a conviction, there was not overwhelming evidence of guilt. Therefore, we cannot conclude the missing witness instruction, in combination with the prosecutor’s multiple references to Gary’s absence, was harmless.

The court reversed Houser’s conviction.

My opinion? Good decision. I’ve conducted jury trials where the Prosecutor has tried admitting Missing Witness Jury Instructions in the midst of trial. Luckily, most judges know these instructions should be used sparingly.

Worst-case scenario, Missing Witness Jury Instructions shift the burden to the Defendant to prove their defense. This small, yet subtle burden-shift has incredibly damaging implications which ultimately violate a defendant’s rights at trial. Remember, it’s the State – and not the defendant – who carries the burden of proof. The defendant has no burden of proving anything unless the defense is self-defense or other defenses requiring expert witnesses.

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.

Recorded Arguments & Privacy.

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In State v. Smith, the WA Court of Appeals Division II held that an accidentally recorded argument between the defendant and his wife was improperly admitted at trial and violated the Washington Privacy Act.

John and Sheryl were a married couple. On June 2, 2013, they were in their residence drinking. They became intoxicated and began to argue. John began to beat and strangle Sheryl, who lost consciousness due to the strangling. Sometime during the attack, John used the residence’s landline telephone to try to locate his cell phone. Unable to do so, he was unaware that his actions activated his cell phone’s voice mail function, which started recording part of the dispute. In that recording, John is heard yelling insults at Sheryl. Sheryl responded to these statements by screaming unintelligibly or asking him to stop or leave her alone. At one point during the recording, Sheryl tells John to “Get away,” to which he responds, “No way. I will kill you.”

Shortly after the voice mail was recorded, John left the residence. Sheryl called 911 and reported that John had beaten her. A police officer with the Vancouver Police Department arrived at the residence, and Sheryl was transported to the hospital. John’s cell phone was retrieved and taken by the police. John was later arrested and charged with first degree attempted murder (domestic violence), second degree attempted murder (domestic violence), first degree assault (domestic violence), and second degree assault (domestic violence). Before trial, John moved to suppress the cell phone voice mail recording based on RCW 9.73.030, which applies to intercepting, recording and/or the divulging of private communications under the WA Privacy Act. The trial court held a CrR 3.6 hearing and denied his motion.

At John’s bench trial, the recorded voice mail, 911 phone calls, and photographs of Sheryl’s injuries were admitted into evidence. The trial court found John guilty of second degree attempted murder and second degree assault, both with domestic violence enhancements.

John appealed on three issues: (1) whether the recorded voice mail’s contents are a conversation; (2) if the contents are a conversation, whether it was private; and (3) if a private conversation, whether it was recorded or intercepted.

For the following reasons, the Court held that John recorded a private conversation in violation of RCW 9.73.030.

1. DID A CONVERSATION TAKE PLACE?

Amidst screaming from Sheryl, the following communications took place:

John: “You think you’re bleeding?. . . . You’re the most fucked up person. Give me back the phone.”

Sheryl: “Get away.”

John: “No way. I will kill you.”

Sheryl: “I know.”

John: “Did you want to kill me? Give me back my phone.”

Sheryl: “No. Leave me alone.”

The Court reasoned that the contents of the recorded voice mail constituted a conversation. Although Sheryl’s screams alone would not constitute a conversation, these screams were responsive to statements that John was making to Sheryl and were scattered throughout the entire dispute, which contained repeated verbal exchanges between the two individuals as outlined above. Within this context, Sheryl’s screams serve as an expression of sentiments responsive to John’s yelling and thus constitute part of a conversation.

2. WAS THE CONVERSATION PRIVATE?

The Court held that the conversation was private. Here, a domestic dispute occurred between two married persons in the privacy of their home. It reasoned that the location of the conversation, the relationship between the parties, and the absence of third parties all declare the privacy of the conversation. Therefore, reasoned the Court, John had a “subjective intention and reasonable expectation that the conversation with Sheryl would be private.”

3. IF THE CONVERSATION WAS PRIVATE, WAS IT RECORDED OR INTERCEPTED?

The Court held that the WA Privacy Act was violated when John accidentally recorded a private conversation without Sheryl’s consent. It reasoned that the WA Privacy Act requires the consent of all parties to a private conversation. Further, the case law has implied that no third party is required to record a conversation. In other words, a party to a private conversation can also be the person who impermissibly records the conversation. Thus, reasoned the Court, John’s recording of this conversation can violate the privacy act, even though he accidentally made himself a party to it.

Based on the above, the Court reversed and remanded the second degree attempted murder conviction, but affirmed the second degree assault conviction.

My opinion? Although my sympathies go out to the victim, the Court’s decision was correct. Privacy is a mysterious subject matter in our ever-changing world. Cell phones and other devices allow us to record anything, any time, anywhere. The fact is, most of us don’t know even know we’re even being recorded in our daily lives. So you can imagine a scenario where accidental recordings become the subject for intense litigation.

Many clients ask me if recorded conversations between themselves and alleged victims/witnesses are admissible at trial. Clearly, the answer is “No” under the WA Privacy Act unless the participants are (1) aware that their conversation is being recorded, and (2) expressly consent to the recording. Interesting stuff. This case was a good decision upholding our privacy rights in the face of today’s technological advancements.

Jail Phone Conversations Are Admissible At Trial

In State v. Dere, the Court of Appeals Division I held that a telephone conversation between a jail inmate and a person outside the jail is not a private communication when the participants are advised that the call will be recorded and must confirm their understanding that they are being recorded. Also, a recording of such a conversation is admissible evidence against the noninmate as well as against the inmate.

Defendant Zakaria Dere was a co-defendant in a Robbery. Before the trial, Dere posted bail and was released from custody. Dere received several calls from Mohamed Ali, a codefendant who remained in jail. Their conversations were recorded by the jail’s telephone system.

Unfortunately for Dere, the recordings gave evidence that Dere was an accomplice in the robbery. He argued a CrR 3.5 motion to suppress., however, the trial court denied his motion. Ultimately, Dere’s statements were used against him by the State at his trial. He was found guilty of Robbery. He appealed.

WASHINGTON PRIVACY ACT

The Court of Appeals addressed Dere’s argument that the admission of the recordings violated the Washington Privacy Act under RCW 9.73. Under this statute, recordings obtained in violation of the act are inadmissible for any purpose at trial. The act also makes it unlawful to intercept or record private communications transmitted by telephone without first obtaining the consent of all participants in the communication. Dere cited State v. Modica in arguing that a communication is private when parties manifest a subjective intention that it be private and where that expectation is reasonable.

Despite Dere’s arguments, the Court of Appeals reasoned that Dere’s conversations with Ali were not private communications. Dere and Ali did not have a reasonable expectation of privacy in their telephone conversations because they knew their calls were recorded and subject to monitoring. “Because the calls were not private communications, the privacy act does not apply,” reasoned the Court.

WASHINGTON CONSTITUTION

Next, the Court of Appeals addressed Dere’s claims that the recording of his calls violated his constitutionally protected privacy rights. The Court reasoned that although Article I, section 7 of the Washington Constitution generally protects the privacy of telephone conversations, calls from a jail inmate are not private affairs deserving of protection:

” A jail recording system . . . and its operation typically demonstrates that at least one participant in a conversation has consented to the recording. The inspection of other forms of communication with inmates, such as ingoing and outgoing mail and packages, is not an invasion of a privacy interest protected by the Washington Constitution so long as the inmate is informed of the likelihood of inspection.”

With that, the Court of Appeals concluded there was no violation of Dere’s constitutional privacy interests. The Court upheld Dere’s Robbery conviction.

My opinion? Obviously, this case shows that suppressing jail inmate conversations is difficult to impossible; especially when the automated voice informs the callers that the conversations are being recorded. I always advise my jailed clients to limit their phone conversations with friends and family members. Speaking from experience, I’ve conducted many trials where Prosecutors use recorded jail inmate against my clients in attempts to incriminate them. Usually, the recorded conversations are suppressible on other grounds as being prejudicial, irrelevant, confusing, misleading etc. under ER 403. Still, trying to suppress incriminating statements is a terrible position to be in; especially when avoidable.

State v. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at trial. Again, good rulings!

State v. Cherry: Consent & Self-Incrimination

In State v. Cherry, the WA Court of Appeals Division II decided that a police officer’s questions to the passengers of a vehicle – which were intended to determine whether one of the passengers could safely remove the defendant’s car from the scene – were routine booking questions and did not violate the defendant’s Fifth Amendment rights.

Defendant Mathew Cherry was arrested for driving with a suspended license. He was driving two passengers. When the police officer asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. The officer told Cherry that his car would be impounded.

Cherry consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs.

The State charged Cherry with Unlawful Possession of a Controlled Substance and Tampering With Evidence. Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his statements to police. At trial, a jury found Cherry guilty as charged. He appealed.

Ultimately, the Court of Appeals upheld Cherry’s convictions. Here, the officer’s questions to Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene.

Additionally, the court disagreed with Cherry’s arguments that officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. Here, the officer informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The court reasoned that the request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

Moreover, Cherry’s statements to police that he had consumed drugs earlier that day were admissible, and not made in response to any questioning likely to elicit an incriminating response. The court reasoned that even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. There was no violation of Cherry’s right to remain silent. Therefore, his statements were properly admitted.

Finally, the court disagreed with Cherry’s arguments that his consent to search was not voluntary, and therefore, it violated the Fourth Amendment and the evidence found during the search is inadmissible. Here, under these facts, Cherry clearly consented.

For all of these reasons, the Court of Appeals affirm Cherry’s convictions.

State v. Mayer: Officer Gives Confusing Miranda Warnings

In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.