Category Archives: Sixth Amendment

Expert Witnesses & Meth

Image result for methamphetamine aggression

In State v. Richmond, the WA Court of Appeals held that a defense expert witness’s proposed testimony regarding the effects of methamphetamine was properly barred at trial because the expert never met or examined the victim and increased aggression is only one possible effect of methamphetamine ingestion.

BACKGROUND FACTS

Dennis Higginbotham went to Joseph Richmond’s property with two other individuals, Veronica Dresp and Lonnie Zackuse. Ms. Dresp was Mr. Richmond’s estranged girlfriend. Ms. Dresp had asked Mr. Higginbotham and Ms. Zackuse to accompany her to Mr. Richmond’s property so that she could remove some of her belongings.

A verbal argument ensued between Mr. Richmond and Mr. Higginbotham. After the verbal argument, Mr. Richmond went into his house. His return to the house was a relief. It appeared the hostility had come to an end.

Unfortunately, this turned out not to be true. Instead, Mr. Richmond ran out of his house, armed with a two-by-four piece of lumber that was nearly four feet in length. Mr. Richmond and Mr. Higginbotham then started exchanging more words. Mr. Richmond warned Mr. Higginbotham not to come any closer to him. When Mr. Higginbotham took a step forward, Mr. Richmond struck Mr. Higginbotham with the two-by-four. According to Ms. Dresp and Ms. Zackuse, Mr. Richmond held the two-by-four like a baseball bat and swung it at Mr. Higginbotham’s head. After he was hit, Mr. Higginbotham spun around and fell face first on the ground.

When emergency personnel arrived at the scene, it was determined Mr. Higginbotham had suffered severe head trauma. He was unconscious and eventually transported to
Harborview Medical Center in Seattle. He died shortly thereafter.

Mr. Richmond was charged with second degree murder.

Mr. Richmond lodged a self-defense theory against the State’s murder charges. In support of this theory, Mr. Richmond sought to introduce testimony from several experts. One of the experts was David Predmore. Mr. Predmore was offered to testify about the general effects of methamphetamine consumption on human behavior. According to the defense, this testimony was relevant because high levels of methamphetamine had been found in Mr. Higginbotham’s system at the time of his death.

Although Mr. Richmond was not aware of Mr. Higginbotham’s methamphetamine consumption at the time of the assault, the defense theorized that Mr. Predmore’s testimony was relevant to corroborate Mr. Richmond’s claim that Mr. Higginbotham was behaving aggressively the night of the attack. However, the trial court excluded Mr. Predmore’s testimony as speculative and irrelevant. The jury convicted Mr. Richmond of second degree murder. He appealed.

ISSUE

On appeal, the issue was whether the trial court violated Mr. Richmond’s constitutional right to present a defense by excluding his expert’s testimony.

COURT’S ANALYSIS & CONCLUSIONS

“Mr. Richmond argues the trial court violated his constitutional right to present a
defense by excluding expert testimony,” said the Court of Appeals. “We disagree.”

The Court of Appeals reasoned that Evidence Rule 702 governs the admissibility of expert testimony. “Under this rule, a witness may provide expert opinion testimony to the jury if (1) the witness is qualified as an expert, and (2) the witness’s testimony would help the trier of fact,” said the Court of Appeals.

“Expert testimony is helpful if it concerns matters beyond the common knowledge of the average layperson and does not mislead the jury. A proposed expert’s testimony is not helpful or relevant if it is based on speculation.”

Furthermore, the Court of Appeals reasoned that the trial court properly excluded Mr. Predmore’s proposed testimony regarding the effects of methamphetamine because it was not shown to be potentially helpful to the jury. “Mr. Predmore had never met or examined Mr. Higginbotham. He had no basis to assess how Mr. Higginbotham’s body may have processed methamphetamine,” said the Court of Appeals. It further reasoned that according to Mr. Predmore’s proposed testimony, methamphetamine can have a wide range of effects. Increased aggression is only one possibility. “It is therefore nothing but speculation to connect Mr. Higginbotham’s methamphetamine use with Mr. Richmond’s claim of victim aggression,” said the Court of Appeals. “The evidence was properly excluded, consistent with long standing case law.”

With that, the Court of Appeals upheld the conviction.

Please contact my office if you, a friend or family member are charged with a crime after responding in self-defense. Hiring competent and experienced counsel is the first step toward receiving a just resolution.

Felony Harassment (DV)

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In State v. Horn, the WA Court of Appeals held that the trial court’s refusal to admit evidence of the defendant’s and the victim’s engagement and trip taken after the date of a domestic violence offense did not violate the defendant’s Sixth Amendment rights.

BACKGROUND FACTS

Horn and Ms. Oubre became romantically involved while Oubre was estranged from another man with whom she had had a relationship. Horn and Oubre began openly dating in January 2015.

In January 2015, Horn and Oubre were at Oubre’s residence drinking alcoholic beverages. While Oubre was using her cellphone, Horn grew angry and accused her of texting the man with whom she had been involved. According to Oubre, she had never seen him have “an episode like this before.” Horn grabbed Oubre’s night shirt and ripped it open, hitting her on the chest in the process.

Scared that the downstairs neighbor would hear the scuffle, Oubre and Horn went to Horn’s home. Once they arrived and got out of the car, Oubre told Horn that she was going to leave, but Horn grabbed her. They began wrestling when Horn pushed her against a wall and down into a flower bed. He bit her multiple times. Oubre did not call the police.

On August 7, 2015, Horn and Oubre were together at her home. Oubre was on her cell phone playing a game. Horn grew aggressive, believing that Oubre was texting an ex-boyfriend. A violent exchange occurred between Horn and Oubre. Horn straddled Oubre on the bed, pointed a gun at himself and Oubre, and gave numerous threats against her life.

Later, Oubre went to the hospital. She spoke with the police while at the hospital, and Horn was then arrested. Among other offenses, Horn was charged with domestic violence felony harassment based on the August incident. Horn posted bail on August 20, 2015.

Oubre and Horn got engaged on September 5 and took a trip together.

Horn was later charged with violating a no-contact order, to which he pled guilty. As part of the events related to that charge, videotape evidence showed Horn naked while jumping on top of Oubre’s car.

Before trial on the felony harassment charge, the State sought to introduce evidence of
the January 2015 incident under ER 404(b) to show that Horn’s threat to kill Oubre in August 2015 placed her in reasonable fear that the threat would be carried out. One of the elements of felony harassment is that the victim be placed in reasonable fear that a threat will be carried out.

Before trial, both the State and defense counsel argued over whether the evidence of the January 2015 incident should be admitted. The defense objected and in the alternative argued that if the State was permitted to introduce this evidence, the defense should be able to introduce evidence of Oubre and Horn’s engagement and trip after August 2015. In the defense’s view, this evidence showed that Oubre did not have a reasonable fear that Horn would carry out his threat to kill her on August 7.

The State opposed the admission of evidence of their engagement and trip because “it triggers a bunch of things,” including Horn’s later violation of a no-contact order where he was naked and jumping on top of Oubre’s vehicle. The State also did not believe the evidence was relevant to whether Oubre was fearful in August 2015.

The jury found Horn guilty of two counts of fourth degree assault, unlawful possession of
a firearm, and domestic violence felony harassment. Horn appealed. He argued that his Sixth Amendment right to present his defense was violated because the trial court did not admit evidence of Oubre and Horn’s engagement and trip taken after the August 2015 incident.

COURT’S ANALYSIS & CONCLUSIONS

“We review a Sixth Amendment right to present a defense claim under a three-step test,” said the Court of Appeals. First, the evidence that a defendant desires to introduce must be of at least minimal relevance. A defendant only has a right to present evidence that is relevant. Second, if relevant, the burden shifts to the State to show that the relevant evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial. Third, the State’s interest in excluding prejudicial evidence must also be balanced against the defendant’s need for the information sought, and relevant information can be withheld only if the State’s interest outweighs the defendant’s need.

The Court reasoned that to show a violation of the right to present a defense, the excluded evidence, that of Horn and Oubre’s engagement and trip, must first be of at least minimal relevance. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The threshold to admit relevant evidence is very low.

Impeachment evidence is relevant if: (1) it tends to cast doubt on the credibility of the person being impeached and (2) the credibility of the person being impeached is a fact of consequence to the action.

The court reasoned that here, Oubre’s subsequent engagement and trip with Horn thus would be relevant, if at all, to impeach her testimony that she feared Horn at the time he threatened to kill her.

“With the frightening nature of the threats and violence against Oubre on August 7 and the passage of nearly a month until their engagement, Oubre’s change of heart casts little doubt on her testimony that on August 7, in the face of repeated violence and death threats, she feared for her life.”

The court said that for these reasons, especially in combination with the cycles of violence and reconciliation in domestic violence relationahips, the evidence of Oubre’s engagement to and trip with Horn was not relevant.

“The trial court’s exclusion of that evidence was neither manifestly unreasonable, based on untenable grounds, nor based on untenable reasons,” said the Court of Appeals. “Thus, under the abuse of discretion standard, the exclusion of this evidence did not deprive Horn of his right to present a defense.” Furthermore, because Horn does not meet the first requirement of the three-step test, his claim that the trial court deprived him of the right to present a defense fails.

With that, the Court of Appeals ruled that Horn’s right to present a defense was not violated. Therefore, his convictions were affirmed.

Please contact my office if you, a friend or family member face domestic violence charges.

Jail Mail

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In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

“Original Gangster” Comment Improper, But Not Prejudicial

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In In re Personal Restraint of Sandoval, the WA Supreme Court held that it was improper for the prosecutor to refer to the defendant as an “OG” (original gangster) in closing argument, where no one testified that simply being a longtime gang member was sufficient for “OG” status.

BACKGROUND FACTS

Sandoval is a member of the Eastside Lokotes Surefios (ELS) gang in Tacoma.
On February 7, 2010, ELS members, in a stolen van, pulled up to a car and fired no less
than 12 gunshots from at least two firearms into the passenger door of the car. The
driver, Camilla Love, was hit three times and died from her injuries.

Sandoval was arrested in September 2010. The State ultimately charged Sandoval
with three counts: first degree murder (by extreme indifference) of Camilla Love (count
I), first degree assault of Joshua Love (count 2), and conspiracy to commit first degree murder (count 3). The other ELS members involved in the shooting were similarly
charged. They were tried along with Sandoval in the same proceeding, but pleaded guilty
after the prosecution rested in exchange for reduced charges. Only Sandoval took his
case to the jury.

During trial, the Prosecutor presented evidence indicating that Sandoval was a longtime ELS member. Sandoval concedes this. Evidence was also presented that OGs have elevated status. The trial court found this evidence sufficient to support a reasonable inference that
Sandoval was an OG.

Later, the jury ultimately convicted Sandoval as charged. The court sentenced Sandoval to a total sentence of 904 months of confinement. The ELS members who pleaded guilty received reduced charges.

Sandoval appealed. Among other issues on appeal, he argued that comments made by the prosecutor during rebuttal closing argument constituted misconduct and that this misconduct violated his constitutional right to a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Prosecutor’s “OG” References were Improper But Did Not Prejudice
    Sandoval.

The court explained that in order to make a successful claim of prosecutor misconduct, the defense must establish that the prosecuting attorney’s conduct was both improper and prejudicial. To be prejudicial, a substantial likelihood must exist that the misconduct affected the jury’s verdict. The Court further reasoned that when a defendant objects to an allegedly improper comment, it evaluates the trial court’s ruling for an abuse of discretion. Failure to object to an allegedly improper remark constitutes waiver unless the remark is so flagrant and ill-intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.

“While some of the prosecutor’s comments were improper, Sandoval fails to demonstrate prejudice,” said the Court. The Supreme Court agreed that the prosecutor’s repeated references to Sandoval being an “OG” during his rebuttal closing argument was an improper attempt to embellish Sandoval’s culpability to the jury because the inference was not reasonably supported by the record.

“But no one testified that simply being a longtime gang member was sufficient for OG status,” said the Court. The court reasoned that although a witness testified that an OG was one of the older original members of the gang, the witness did not identify Sandoval as such, instead naming older gang members who were incarcerated at the time of the Love shooting. “Thus, the evidence presented at trial was insufficient for the prosecutor to reasonably infer that Sandoval was an OG,” said the Court. “As a result, the OG comments were improper.”

Nevertheless, the Supreme Court also reasoned that the prejudice generated from such comments is negligible. Sandoval freely admitted he needed to be involved in the attack, attended planning meetings for the attack, and voluntarily assisted a co-defendant in searching out a target and keeping an eye on police that evening. “Given these admissions, it is not substantially likely that the jury’s mistaken belief that Sandoval may have been an OG would have affected the outcome in this case. “This claim has no merit,” said the Court.

2. The Prosecutor’s Racial Comments Were Not Improper.

Here, Sandoval claimed that the prosecutor improperly distinguished between the
gang status of Asian/Pacific Islanders and Latinos during rebuttal closing argument.
The Supreme Court explained that it is improper and a Sixth Amendment violation for a
prosecutor to “flagrantly or apparently intentionally appeals to racial bias in a way that
undermines the defendant’s credibility or the presumption of innocence.”

The court explained that when racial bias is implicated, the normal prejudicial standard for prosecutorial misconduct is elevated. To avoid a constitutional violation from prosecutorial misconduct based on comments appealing to racial bias, the State must demonstrate that the misconduct did not affect the verdict “beyond a reasonable doubt.”

“However, this heightened standard does not apply every time a prosecutor mentions
race,” said the Court. “It applies only when a prosecutor mentions race in an effort to appeal to a juror’s potential racial bias, i.e., to support assertions based on stereotypes rather than evidence.”

The Supreme Court reasoned that here, the prosecutor referred to Asian/Pacific Islanders one time and did so to explain the hierarchy of the ELS membership; that is, only Latinos such as Sandoval could be full-fledged members.

The Supreme Court further reasoned that Sandoval, rather than the State, has the burden of demonstrating that the prosecutor’s comment regarding the role of Asian/Pacific Islanders was improper and prejudicial, and he fails to do so. The trial court did not err when it held that the prosecutor’s statement about gang hierarchy was a reasonable inference based on all the testimony that came out at trial.

“It is not substantially likely that any alleged improper comments by the prosecutor
prejudiced Sandoval,” said the Supreme Court. “This claim has no merit.”

With that, the Supreme Court upheld Sandoval’s conviction and sentence.

My opinion? Prosecutors are bound by a sets of rules which outline fair and dispassionate conduct, especially during trial. Generally, prosecutorial misconduct is an illegal act or failing to act, on the part of a prosecutor, especially an attempt to sway the jury to wrongly convict a defendant or to impose a harsher than appropriate punishment. If prosecutors break these rules, then misconduct might have happened.

Please contact my office if you, a friend or family member faces criminal charges, especially if it appears the prosecution is unfairly prosecuting your case. It’s important to hire defense counsel who know the scope and limits of which the government can go about proving its case.

Who Is The Toxicologist?

Image result for toxicologist testimony

In the deeply divided 5-4 court decision State v. Salgado-Mendoza, the WA Supreme Court held that the trial court did not abuse its discretion in denying the defendant’s motion to suppress the toxicologist’s testimony under CrRLJ 8.3(b) even though the defendant was not informed which State toxicologist would testify.

I originally discussed this case in my blog titled, “Prosecutors Must Reveal Toxicologist Identities in DUI Trials.” At that time, the WA Court of Appeals Division II reversed the defendant’s DUI conviction because the Prosecutor failed to give Defense Counsel the name of their Toxicologist expert witness before trial.

On appeal, however, the WA Supreme Court decided differently. It overturned the Court of Appeals and said the trial court, in fact, was correct in denying the defendant’s motion to suppress the toxicologist’s testimony.

BACKGROUND FACTS

On the evening of August 11, 2012, a Washington State Patrol trooper stopped and arrested Mr. Salgado-Mendoza for DUI. His BAC test showed a blood alcohol concentration of 0.103 and 0.104; which is over the .o8 limit.

Before trial, the State initially disclosed the names of nine toxicologists from the Washington State Patrol toxicology laboratory, indicating its intent to call “one of the following.” It whittled the list to three names the day before trial, but did not specify which toxicologist it would call until the morning of trial, noting that it provided the witness’s name “as soon as we had it and that’s all that we can do in terms of disclosure.”

Mendoza moved to suppress the toxicologist’s testimony under CrRLJ 8.3(b) based on
late disclosure, asking the court to “send a message to the state patrol crime lab and
say this isn’t okay anymore.” The trial court refused, finding no actual prejudice to the defense and observing that the practice of disclosing a list of available toxicologists rather than a specific witness was driven more by underfunding of the crime labs than by mismanagement.

Salgado-Mendoza appealed to the superior court, which found the district
court had abused its discretion. The Court of Appeals affirmed, reasoning that the
delayed disclosure violated the discovery rules and caused prejudice. Again, however, the WA Court of Appeals disagreed.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reasoned that while the State’s disclosure practice amounted to mismanagement within the meaning of CrRLJ 8.3(b), Salgado-Mendoza has not demonstrated actual prejudice to justify suppression.

The majority Court explained that under CrRLJ 8.3(b), the party seeking relief bears the burden of showing both misconduct and actual prejudice.

“In this case, Salgado-Mendoza can demonstrate misconduct within the meaning of the rule, but not actual prejudice. He can prove misconduct because a discovery violation need not be willful—simple mismanagement will suffice. Here, the State’s failure to at least narrow the list of possible toxicology witnesses pretrial reflects mismanagement,” said the Court. “However, Salgado-Mendoza cannot show prejudice that wan’ants complete suppression of the toxicologist’s testimony.”

With that, the WA Supreme Court held that Mr. Mendoza has not demonstrated actual prejudice to justify suppression of the toxicologist’s testimony. “Because there was no abuse of discretion, we reverse the Court of Appeals.”

THE DISSENT

Justice Madsen authored the dissenting opinion. She was joined by Justices Yu, Gordon McCloud and Johnson.

In short, the dissenting judges disagreed with the majority because they believed the defendant was prejudiced by this delayed disclosure of the possible toxicologists who would testify. They reasoned that forcing a defendant to bear the burden of preparing to cross-examine a long list of witnesses when the State only intends to call one is not how our system of justice operates.

“The State cannot cite funding deficiencies and simply shift its burden of prosecution onto defense counsel,” wrote Judge Madsen. “If the State wishes to pursue prosecution, it must allocate sufficient resources to its departments so that they may operate in a way that is consistent with a defendant’s right to a fair trial.”

“By under-staffing the State’s toxicology laboratory so that they cannot confirm who will testify until the day of trial, the State is not meeting this burden and defendants are being forced to compensate for the deficiency. Therefore, I would find that the trial court abused its discretion by denying Salgado-Mendoza’s motion to suppress the toxicologist’s testimony.”

My opinion? I must agree with the dissenting opinion. Under the Sixth Amendment and the WA Constitution, The State bears the burden of proving their charges beyond a reasonable doubt. Also, the State must follow discovery rules under CrR 4.7. One of the State’s discovery obligations is to name their witnesses who they call to testify. Period. Collateral issues revolving around the State’s under-staffing and a lack of funding should not excuse violating a defendant’s Constitutional rights.

Evidence of Self-Defense

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In State v. Lee, the WA Court of Appeals held that the trial court violated the defendant’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

BACKGROUND FACTS

On January 25, 2015, the defendant Chevalier  Lee’s girlfriend, Danielle Spicer, visited the home of Alice Gonzalez and her husband, Louis Gonzalez -ernandez. Spicer went to the Gonzalez’s house and stayed there with Gonzalez and Gonzalez Hernandez’s’ five children while Gonzalez and Gonzalez-Hernandez ran errands. Gonzalez and Gonzalez-Hernandez returned home to find Lee at their house playing cards with their children and Spicer. Although they had not invited him, Lee had been to their home many times and was generally welcome there.

Later that evening, Lee and Spicer began arguing about whether they would spend the night with Gonzalez and Gonzalez-Hernandez or return to their respective individual residences. Lee loudly cursed at Spicer as the argument escalated. Gonzalez-Hernandez told Lee that he did not like “that kind of behavior” in his house and Lee would have to leave. Lee refused and said that he didn’t have to leave. Gonzalez-Hernandez told Lee to leave approximately three-to-five times. According to Lee, he then cursed at Gonzalez-Hernandez who “came right at” him. Gonzalez-Hernandez had his hands up. Lee was scared and hit Gonzalez-Hernandez. The two men then wrestled. Lee left after seeing the scared looks Gonzalez, Spicer, and the children had.

According to Gonzalez-Hernandez, Lee called him a “f**king b***h” and hit him in the
face. Another witness saw Lee approach Gonzalez-Hernandez and get within inches of his face. Gonzalez-Hernandez again told Lee to leave and Lee “swung at him.” After they fought for a few minutes, Gonzalez called 911 and Lee and Spicer left.

Jury Trial

At trial, the defense sought to elicit testimony from Spicer that she and Lee had witnessed
Gonzalez-Hernandez being “physical with his wife” in a separate incident four days prior to the assault. Lee’s attorney argued that this evidence would show that Lee had actual knowledge that Mr. Gonzalez-Hernandez actually had the capacity to be aggressive and/or violent. According to Lee’s defense attorney, this evidence would show Lee’s state of mind regarding his need to defend himself.

The judge sustained the City’s objection, finding the evidence was “more prejudicial than probative” and that allowing such evidence would open the door to evidence about Lee’s prior misconduct. The defense suggested it would then elicit testimony that Lee “had prior information that Mr. Gonzalez-Hernandez had been known to be aggressive.” The trial court sustained the City’s objection to this evidence, finding it “more prejudicial than probative of anything.”

In fact, during Lee’s testimony, Lee stated that he “had reason to be scared of Gonzalez-Hernandez already,” to which the City objected and the court sustained. Neither the City nor the court stated any specific grounds for this objection or ruling.

A jury found Lee guilty of Assault Fourth Degree. He appealed to the Pierce County Superior Court which affirmed the conviction. The WA Court of Appeals granted Lee’s motion for discretionary review.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held that the trial court violated Lee’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

The Court agreed with Lee that evidence he had witnessed regarding Gonzalez-Hernandez’s recent violent behavior was critical to his defense because it both increased the likelihood he had a subjective fear of Gonzalez-Hernandez and it made his fear more objectively reasonable, thus strengthening his self-defense argument.

The Court of Appeals reasoned that self-defense is a complete defense under RCW 9A.16.020. A defense of self-defense requires proof (1) that the defendant had a subjective fear of imminent danger of bodily harm, (2) that this belief was objectively reasonable, and (3) that the defendant exercised no more force than was reasonably necessary. The City has the burden of proving the absence of self-defense beyond a reasonable doubt.

The Court further reasoned that evidence of self-defense is evaluated from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done.

Also, said the Court, a fact finder evaluates self-defense from the defendant’s point of view as conditions appeared to him at the time of the act. For the subjective portion of the self-defense test, jurors must place themselves in the shoes of the defendant and evaluate self-defense in light of all that the defendant knew at the time. All facts and circumstances known to the defendant should be placed before the jury. Thus, reasoned the court, under ER 404(B) and ER 405 (B), where a defendant claims self-defense, a victim’s prior acts of violence known to the defendant are admissible to establish a defendant’s reason for apprehension and his basis for acting in self-defense.

ER 404(B)

To determine whether a specific act should be admissible under rule 404(B), the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect. The trial court is required to conduct an ER 404(b) analysis on the record.

“In this case, Lee sought to admit evidence of Gonzalez Hernandez’s prior acts of violence
to prove that Lee had knowledge of those acts, giving him reason to fear Gonzalez-Hernandez,” said the Court.

Furthermore, the Court reasoned that evidence that Lee had witnessed Gonzalez-Hernandez being “physical” with his wife four days before the incident was relevant to Lee’s state of mind. “The evidence would allow the jury to assess Lee’s reason to fear
bodily harm from the victim,” said the Court.

Finally, the Court weighed the probative value of Gonzalez-Hernandez’s history of violence against its prejudicial effect. “Because the evidence in this case was relevant and otherwise admissible, the trial court should only exclude it if the City showed that the evidence was so prejudicial as to disrupt the fairness of the fact-finding process at trial,” said the Court. “Here, the proffered evidence went to Lee’s complete defense. Its probative value is to allow Lee to present a defense.”

Consequently, the Court ruled that the City failed to demonstrate that evidence of Gonzalez-Hernandez’s prior violent conduct known to Lee would be so prejudicial as to outweigh Lee’s Sixth Amendment right to present his defense. “This type of evidence should be heard by a jury so it can assess the reasonableness of Lee’s actions,” said the Court.

With that, the Court of Appeals reversed Lee’s conviction.

My opinion? Good decision. Under the Sixth Amendment, citizens have a right to an adequate defense. Under Washington statute, self-defense is a complete defense. Therefore, suppressing evidence which proves self-defense violates the Sixth Amendment.

‘Sanctuary’ Cities Targeted by ICE in Immigration Raids

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Erik Ortiz reported that a federal operation to arrest undocumented immigrants netted nearly 500 people in cities and states that have openly opposed the Trump administration’s deportation initiatives.

According to Ortiz, Immigration and Customs Enforcement (ICE) officials said last Thursday that its four-day “Operation Safe City” targeted people in residing in the so-called “Sanctuary Cities” of New York, Los Angeles, Philadelphia, Denver, Washington and Baltimore as well as Cook County, Illinois; Santa Clara County in California’s Bay Area; Portland, Oregon; and Massachusetts.

Officials in those places — some referring to themselves as “sanctuary  communities” — have been vocal about not fully cooperating with federal immigration authorities, at times clashing with state leaders who support President Donald Trump’s agenda. Sanctuary communities have passed ordinances limiting compliance with federal immigration laws and seek to shield undocumented immigrants who may be deported simply over their immigration statuses or low-level criminal offenses.

“Sanctuary jurisdictions that do not honor detainers or allow us access to jails and prisons are shielding criminal aliens from immigration enforcement and creating a magnet for illegal immigration,” Tom Homan, ICE’s acting director, said in a statement. “As a result, ICE is forced to dedicate more resources to conduct at-large arrests in these communities.”

It is not unusual for ICE to round up immigrants by the hundreds or even low thousands, although the latest raid comes on the heels of a planned operation that would have targeted about 8,400 undocumented immigrants this month.

But the Department of Homeland Security scrapped the operation after the agency said it was halting nationwide enforcement actions in the wake of hurricanes Irma and Harvey. This latest effort indicates the administration is ready to renew its efforts.

“ICE’s goal is to build cooperative, respectful relationships with our law enforcement partners to help prevent dangerous criminal aliens from being released back onto the streets,” Homan said.

According to ICE, of the 498 people arrested this week, 317 had criminal convictions. Some were also categorized as “immigration fugitives,” “previously deported criminal aliens,” and/or associated with a gang.

Most of the criminal convictions were for driving under the influence as well as assault- and drug-related offenses, ICE said. Others were arrested for marijuana possession, traffic offenses and even charges of being a “peeping tom.”

City officials declared Portland a sanctuary city in March, and its mayor, Ted Wheeler, has criticized the Trump administration’s push to end the Obama-era program that has allowed undocumented immigrants who came to the United States as children to remain in the country.

The administration, meanwhile, has faced setbacks as it seeks to overhaul immigration — an issue that has failed repeatedly to gain traction in Congress. Weeks ago, a U.S. district judge in northern Illinois gave sanctuary cities a temporary victory, saying the Justice Department can’t withhold public safety grants to Chicago because officials there don’t want to impose certain immigration policies.

My opinion? As a criminal defense attorney, my role is to protect people’s Constitutional Rights under the Fourth Amendment. Therefore, I have a natural inclination to prevent warrantless, unlawful searches and seizures.

That said, I understand if the government declares a state of emergency holding that exigent circumstances warrants the immediate seizure and deportation of undocumented immigrants.

However, there’s lots of controversy surrounding the subject of ICE raids on Sanctuary Cities. Some civil rights advocates say the raids fit with the Trump administration’s pattern of scapegoating, criminalizing, and demonizing immigrants. Also, courts have said that holding someone without a warrant could violate their constitutional rights, putting jailers at risk of lawsuits. Finally, others have accused Trump’s attack on sanctuary cities as a malignant executive power grab that subverts the Spending Clause and tramples the 10th Amendment.

Let’s see what happens . . .

Join Offenses = Bad Results

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In State v. Linville, the WA Court of Appeals held that the defendant’s numerous criminal charges cannot be “joined” to a charge of leading organized crime.

BACKGROUND FACTS

Following an increase in residential burglaries in Thurston County, law enforcement
officers noticed similarities among several burglaries. Officers ultimately recovered numerous items taken during the burglaries from Linville’s home.

The State charged Linville with 1 count of leading organized crime, 35 counts of
residential burglary, 1 count of attempted residential burglary, 4 counts of first degree burglary, 3 counts of second degree burglary, 39 counts of trafficking in stolen property, 17 counts of first degree theft, 18 counts of second degree theft, 1 count of attempted second degree theft, 3 counts of third degree theft, 5 counts of theft of a firearm, 5 counts of identity theft, 4 counts of unlawful possession of a firearm, 1 count of possession of stolen property, and 1 count of possession of a controlled substance, for a total of 138 charges with numerous deadly weapon sentencing enhancements. The State alleged that Linville was armed with a firearm during the commission of the four first degree burglaries.

At no point did Linville argue that joinder of any offenses was improper under RCW 9A.82.085.

During the jury trial, the State presented testimony from numerous co-defendants who identified Linville as the instigator and leader of the burglary scheme. The co-defendants’ testimony was corroborated by law enforcement officers and victims who described the common characteristics among the burglaries and identified stolen goods recovered from the homes of Linville and his co-defendants. The jury found Linville guilty of 137 offenses, and he was sentenced to 914 months in prison, which included 240 months for four firearm sentencing enhancements.

Linville appealed on the argument that his defense counsel gave ineffective assistance of counsel by failing to move for severance of offenses that were not part of the pattern of criminal profiteering activity from the charge of leading organized crime under RCW 9A.82.085.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court agreed with Linville. It reasoned that the Sixth Amendment guarantees the effective assistance of counsel in criminal proceedings. To show ineffective assistance of counsel, a defendant must show that (1) defense counsel’s conduct was deficient, and (2) the deficient performance resulted in prejudice. To show deficient performance, Linville must show that defense counsel’s performance fell below an objective standard of reasonableness. To show prejudice, Linville must show a reasonable possibility that, but for counsel’s purportedly deficient conduct, the outcome of the proceeding would have differed.

  1. Counsel Rendered Deficient Performance.

First, the Court reasoned that RCW 9A.82.085 states the following, in relevant part:

“In a criminal prosecution alleging a violation of leading organized crime, the state is barred from joining any offense other than the offenses alleged to be part of the pattern of criminal profiteering activity.”

RCW 9A.82.010(12) defines “pattern of criminal profiteering activity” as “engaging in at least three acts of criminal profiteering.” RCW 9A.82.010(4) defines “criminal profiteering” as:

“any act, including any anticipatory or completed offense, committed for financial gain, that is chargeable or indictable under the laws of the state in which the act occurred and, if the act occurred in a state other than this state, would be chargeable or indictable under the laws of this state had the act occurred in this state and punishable as a felony and by imprisonment for more than one year, regardless of whether the act is charged or indicted, as any of the following: . . . .”

RCW 9A.82.010(4) then lists 46 crimes and their defining statutes. First and second degree theft, trafficking in stolen property, leading organized crime, and identity theft are included in the list. However, residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property are NOT included in the list. 

Consequently, the Court reasoned that a plain reading of the statutes made it clear that the State was barred from joining charges of residential burglary, first degree burglary, second degree burglary, attempted residential burglary, theft of a firearm, third degree theft, unlawful possession of a firearm, and possession of stolen property to Linville’s prosecution for leading organized crime.

“The unreasonable failure to research and apply relevant statutes without any tactical purpose constitutes deficient performance. Here, defense counsel’s failure to object to the State’s improper joinder of charges was unreasonable and constitutes deficient performance.”

2. Counsel’s Deficient Performance Resulted in Prejudice to the Defendant’s Case.

The Court said that in order to succeed on his claim of ineffective assistance of counsel, Linville must also show that but for his attorney’s deficient performance the outcome of the trial would have differed, and therefore the deficient performance was prejudicial.

To this end, the Court reasoned that this issue is somewhat different than the related issue of discretionary joinder or severance pursuant to CrR 4.4(b). Under CrR 4.4(b), a trial court must grant a motion to sever offenses if it determines that “severance will promote a fair determination of the defendant’s guilt or innocence of each offense.” A defendant seeking such a severance under CrR 4.4(b) must show that a trial involving all counts would be so manifestly prejudicial as to outweigh the concern for judicial economy.

In contrast, the Court explained that RCW 9A.82.085 leaves no room for the trial court’s discretion. Under that statute, the State is barred from joining offenses other than those alleged to be part of the criminal profiteering activity in a prosecution for leading organized crime.

“Because of defense counsel’s failure to object, Linville was improperly tried for 138 total charges and convicted of 137 offenses,” said the Court. “Had counsel properly objected to the joinder, 56 of the charges, including all of the burglary charges, would have been severed, the trial would not have included convictions for those 56 improperly joined charges, and the outcome of this trial would have been different.”

The Court extrapolated the prejudicial consequences of the joinder. It explained that each of the four firearm enhancements – which resulted in a mandatory minimum sentence of 240 months – were associated with the four counts of first degree burglary. The firearm enhancements would not have been considered but for defense counsel’s deficient performance.

“The improper joinder had additional prejudicial consequences,” stated the Court. For example, by improperly joining four charges of unlawful possession of a firearm, the State was permitted to introduce evidence of Linville’s prior felony for possession of a controlled substance without a prescription. This prior conviction evidence was highly prejudicial given that the State’s theory was that Linville’s crime ring was motivated by drugs. Also, the State relied heavily on the burglaries as evidence of Linville’s guilt for leading organized crime. A jury separately considering the burglary charges would not necessarily have heard testimony of Linville’s accomplices accusing him of orchestrating a broad scheme.

Consequently, the Court held that Linville’s defense counsel rendered ineffective assistance of counsel by failing to object to the joinder of offenses in violation of RCW 9A.82.085. The Court therefore reversed Linville’s convictions and remanded them back to the trial court for separate trials.

My opinion? Good decision. A defense attorney’s failure to sever “joined” offenses into separate trials can have profoundly devastating effects. Put simply, juries are more biased against the defendant in a joinder trial versus a trial with a single charge. Consequently, they are more likely to convict on a particular charge in a joinder trial with multiple charges than in a trial on the same single charge. It’s imperative that competent defense attorneys sever counts whenever possible.

Juror Misconduct

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In Godoy v. Spearman, the Ninth Circuit Court of Appeals overturned a murder conviction because a juror inappropriately communicated with a “judge friend” about the case during deliberations.

BACKGROUND FACTS

Enrique Godoy was convicted of second-degree murder by a Los Angeles County Superior Court jury. A week before his June 12, 2006 sentencing, he moved for a new trial alleging that Juror 10 had improperly communicated about the case with a “judge friend” during deliberations. To substantiate his allegations, Godoy brought brought alternate juror “E.M.” to his sentencing hearing. The trial court continued Godoy’s sentencing to a future court date. Later, Godoy sent the Prosecutor a declaration about Juror 10’s misconduct from alternate juror N.L., who wrote the following:

“During the course of the trial, juror number ten kept continuous communication with a gentleman up north, who she referred to as her “judge friend.” Juror number ten explained to us, the jury as a whole, that she had a friend that was a judge up north. From the time of jury selection until the time of verdict, juror number ten would communicate with her “judge friend” about the case via her TMobile Blackberry, a two way text paging system. When the jury was not sure what was going on or what procedurally would happen next, juror number ten would communicate with her friend and disclose to the jury what he said.”

Despite this “smoking gun” declaration, the trial court nevertheless sentenced Godoy to 16 years’ to life imprisonment. Godoy appealed his conviction to the California Court of Appeal, arguing the trial court erred by (1) refusing to presume Juror 10’s communications prejudiced the verdict and (2) refusing to hold an evidentiary hearing on the alleged misconduct. However, the California Court of Appeal rejected both of these arguments on the merits and affirmed Godoy’s conviction. Gody again appealed, this time going to the Ninth Circuit Court of Appeals.

COURT’S ANALYSIS AND CONCLUSION

This Ninth Circuit’s opinion began with the following:

“One of the most fundamental rights in our system of criminal justice is the right to trial before an impartial jury. Its common law origin can be traced back to the Middle Ages. It was enshrined in the Sixth Amendment to the Constitution, and it has been embraced by the Supreme Court in numerous cases . . .”

Against this backdrop, the Ninth Circuit held that the California Court of Appeal decision violated the clearly established Supreme Court law that governs this case. It reasoned that under Mattox v. United States, due process does not tolerate any ground of suspicion that the administration of justice has been interfered with by external influence.

“Thus, when faced with allegations of improper contact between a juror and an outside party, courts apply a settled two-step framework,” said the Ninth Circuit. At step one, the court asks whether the contact was “possibly prejudicial,” meaning it had a tendency to be injurious to the defendant. If so, the contact is deemed presumptively prejudicial and the court proceeds to step two, where the burden rests heavily upon the State to establish the contact was, in fact, harmless. If the State does not show harmlessness – or in other words, if the defendant was, in fact, harmed by the juror’s contact with an outside party – then the court must grant the defendant a new trial.  However, when the prejudicial effect of the contact is unclear, then the trial court must hold a hearing to determine the circumstances of the contact, the impact thereof upon the juror, and whether or not it was prejudicial.

“Here, the California Court of Appeal failed to adhere to this framework in three key respects,” said the Ninth Circuit. First, although the State court correctly acknowledged at step one that N.L.’s declaration raised a presumption of prejudice, it never required the State to rebut that presumption at step two. It concluded instead that the presumption was rebutted because Godoy’s evidence failed to prove prejudice.” The Ninth Circuit further reasoned that under Mattox and Remmer, however, Mr. Godoy was not required to prove prejudice at step two. Once he triggered the presumption, the burden rested heavily upon the State to disprove prejudice. “Thus, in denying relief because Godoy’s evidence did not prove prejudice at step two, the State court acted contrary to well established law,” reasoned the Ninth Circuit.

Second, the California Court of Appeal decision to set aside the State court’s failure to hold the State to its burden was error. In other words, it was wrong for the California Court of Appeal to rely on the very same statement from N.L.’s declaration both to raise the presumption of prejudice and to rebut it.  “This defies not only logic, but also the clearly established definition of a ‘presumption,’” reasoned the Ninth Circuit.

Third, the California Court of Appeal denied Godoy a hearing on prejudice under the wrong legal rule. It held he had to show a “strong possibility” of prejudice, but Remmer requires a hearing whenever, as here, the presumption attaches but the prejudicial effect of the contact is unclear from the record. “Because the state court’s decision contravened these bedrock principles, it was contrary to clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1),” reasoned the Ninth Circuit.

The Ninth Circuit concluded that because Godoy showed the presumption of prejudice, he was entitled to the evidentiary hearing that he never had to begin with. With that, the Ninth Circuit reversed the judgment of the lower court and remanded the case back with instructions to hold an evidentiary hearing to determine the circumstances of Juror 10’s misconduct, the impact thereof upon the jury, and whether or not it was prejudicial.

My opinion? There’s a lot to be learned from this case. First, in all of my trials I admit a jury instruction prohibiting the jurors from accessing the internet and/or their smartphone devices. Jurors must rely on the evidence and the law and not be guided by outside influences. Second, I try and discuss the case with jurors immediately after they render verdicts. These conversations are very helpful teaching moments because jurors reveal what swayed their decisions. Also – and important to the defense of my clients – jurors may reveal whether their fellow jurors committed misconducts  similar to the type described in this case.

Good decision. And kudos to the defense attorney who discovered the juror misconduct. Although my heart goes out to the friends and family of the murder victim, justice is not served when our courts fail to administer their obligation to give defendants a fair trial.

Incomplete & Misleading Search Warrant

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In United States v. Perkins, the Ninth Circuit Court of Appeals held police officers must submit copies of explicit images that the officer believes gives probable cause for a search warrant for child pornography to the judge who is considering the search warrant application so the judge can independently determine whether the nude photographs are sexually suggestive.

BACKGROUND FACTS

Canadian Investigation

On December 29, 2012, Charles Perkins, a then-52-year-old citizen of the United States, was traveling through Toronto International Airport on his way home to Washington State after taking a trip to Chile with his wife and mother-in-law. Canadian Border Services Agency(“CBSA”) officers stopped Perkins after learning that he was a registered sex offender. Perkins had a 1987 first-degree incest conviction and a 1990 first-degree child molestation conviction.

A CBSA officer searched the laptop that Perkins was carrying and, in a folder labeled “cperk,” found two images that he believed to be child pornography. A Peel Regional Police (“PRP”) officer also reviewed the images and, based on his review, arrested Perkins for possession of child pornography. CBSA authorities seized the laptop, along with a digital camera and a memory card.

The next day, Canadian police obtained a search warrant and searched Perkins’ luggage. Constable Ullock searched the laptop and found the two images that the CBSA officer had originally discovered.  After reviewing the images, Constable Ullock concluded that they did not constitute child pornography under Canadian law. In his report of the investigation, he describes the two images as follows:

IMAGE #1 Filename 997.jpg Description: This is a Caucasian female that I would estimate to be between the ages of 13 to 15 years of age. The image shows her only from the mid torso up, including her face. The girl appears to be nude and her breasts are clearly visible . . . . In spite of the fact that this girl is under the age of 18, her breasts are not the dominant feature of the image, and there is no obvious sexual purpose to the image. Therefore this image does not meet the Canadian Criminal Code definition of child pornography.

IMAGE #2 Filename 989.jpg Description: This is an image of a Caucasian female that I would estimate to be between the ages of 13 to 14 years of age. This girl is sitting and appears to be taking a picture of herself by holding out a camera with her right arm slightly above her head looking down on her. . . . This girl is completely nude and towards the bottom of the picture a small portion of her vagina can be seen. . . . However in this photo the view of the girls’ [sic] vagina makes it a minor aspect of the photo, and her hair drapes over much of her breasts, which decrease[s] their prominence. Again there is no clear and obvious sexual purpose to the picture, which means it does not meet the Criminal Code of Canada definition of child pornography.

Based on Constable Ullock’s recommendation, the charge against Perkins was dropped on January 10, 2013.

American Investigation

The case was forwarded to Special Agent Tim Ensley of the United States Department of Homeland Security. Agent Ensley received the two images for first-hand review on January 14, 2013. Ensley applied for a search warrant. In his affidavit, Ensley explained that Canadian officers stopped Perkins because of his prior convictions and arrested him after reviewing the images. Also, Ensley’s description of the second image was far different than the Canadian Constable’s:

IMAGE #2 Filename 989.jpg Description: This color image depicts a white female (hereinafter referred to as “child victim”) sitting on what appears to be a bed with one arm stretched out taking a picture of herself. The child victim is completely nude and can be seen in the image from her upper thigh area to the top of her forehead. The child victim’s breasts and genital area are clearly visible. . . . The child victim is young in appearance and appears to be between twelve and fourteen years of age.

Agent Ensley concluded that the second image (hereinafter referred to as the “989.jpg image”) met the federal definition of child pornography. However, his warrant application did not include copies of either image. Also, Ensley failed to state that the charge in Canada had been dropped pursuant to Constable Ullock’s determination that the images were not pornographic. On January 16, 2013, an American magistrate issued the warrant. Officers arrived at his home and confiscated his computers

The Search and Franks Hearing

The search pursuant to the warrant revealed several images of child pornography on Perkins’ computers, and he was charged with one count of receipt of child pornography and one count of possession of child pornography. Perkins moved to suppress the evidence, arguing that the warrant lacked probable cause. Alternatively, Perkins argued that Agent Ensley deliberately or recklessly omitted material facts from the affidavit, entitling him to a Franks Hearing under Franks v. Delaware, 438 U.S. 154 (1978).

For those who don’t know, a Franks Hearing is a hearing to determine whether a police officer’s affidavit used to obtain a search warrant that yields incriminating evidence was based on false statements by the police officer. The district court denied the motion for a Franks Hearing in its entirety.

On June 6, 2013, Perkins conditionally pleaded guilty to one count of receipt of child pornography. The district court sentenced Perkins to an 180-month term of imprisonment. Perkins appealed.

THE APPEAL

The Court of Appeals examined whether the search warrant contained purposefully or recklessly false statements or omissions. To prevail on a Franks challenge, the defendant must establish two things by a preponderance of the evidence: first, that the officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant, and second, that the false or misleading statement or omission was material, i.e., “necessary to finding probable cause. If both requirements are met, the search warrant must be voided and the fruits of the search excluded.

Here, the Court of Appeals held the lower court mistakenly denied Perkins’ motion to suppress. It reasoned that an officer presenting a search warrant application has a duty to provide, in good faith, all relevant information to the magistrate. Here, Agent Ensley omitted from the search warrant application: (1) the fact that Canadian authorities dropped the child pornography possession charge against Perkins because the images were not pornographic; (2) important portions of Constable Ullock’s description of the 989.jpg image; and (3) copies of the images.

“By providing an incomplete and misleading recitation of the facts and withholding the images, Agent Ensley effectively usurped the magistrate’s duty to conduct an independent evaluation of probable cause,” said the Ninth Circuit. Therefore, Agent Ensley omitted relevant information from the affidavit that resulted in the misleading impression that image 989.jpg was unequivocally child pornography.

Furthermore, the Ninth Circuit held the warrant application was unsupported by probable cause; and that his 20-year prior convictions failed to make it more likely that child pornography would be found on Perkins’ home computers.

Finally, the Ninth Circuit reasoned that the two images found in Perkins’ laptop computer did not establishe a fair probability that there was child pornography on Perkins’ home computer in Washington:

“Other than the fact that the subject is nude, the image lacks any traits that would make it sexually suggestive . . . The subject is not posed in a sexual position with, for example, “her open legs in the foreground . . . She is not pictured with any sexual items. She is sitting in an “ordinary way for her age.” Indeed, if the subject were clothed, this would be a completely unremarkable photo. Viewing the image as a whole, we conclude, under the Dost six-factor test, that it does not depict the ‘lascivious exhibition of the genitals or pubic area.'”

With that, the Ninth Circuit reversed the district court’s denial of the motion to suppress evidence obtained pursuant to the search warrant, and vacated Perkins’ conviction. The case is remanded for further proceedings consistent with this opinion.

Good decision.



Alexander F. Ransom

Attorney at Law
Criminal Defense Lawyer

119 North Commercial St.
Suite #1420
Bellingham, WA 98225

117 North 1st Street
Suite #27
Mount Vernon, WA 98273

Phone: (360) 746-2642
Fax: (360) 746-2949

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