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Burglary of Inmate’s Cell?

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In State v. Dunleavy, the WA Court of Appeals held that a jail cell is a separate building for purposes of supporting a burglary charge/conviction, and the that the victim’s jail cell need not be secured or occupied at the time of the crime in order to support the charge.


Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there are eight cells capable of housing two inmates per cell. The cells open into a day room. In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is permitted to close his cell door, but if he does, the door will remain locked until opened the next morning.

Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla. LaMunyon responded that he did not have enough to share, but would buy more later and share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to “smash out.” Soon after, inmate John Owen attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon’s jail cell and took some of LaMunyon’s food. LaMunyon was seriously injured by Owen. Jail security investigated the fight and the theft, and concluded that the two were related. Security believed that Dunleavy staged the fight between Owen and LaMunyon to give him an opportunity to take LaMunyon’s food.

Because of the seriousness of LaMunyon’s injuries, and because security concluded that the fight and the theft were related, the jail referred charges to the local prosecuting authority. The State charged Dunleavy with second degree burglary, third degree theft, and second degree assault. After the State presented its case, Dunleavy moved to dismiss the second degree burglary charge on the basis that an inmate’s cell is a separate building. The trial court considered the parties’ arguments, denied Dunleavy’s motion to dismiss, and the case continued forward.

Dunleavy called one witness who testified that Dunleavy did not conspire with Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury. The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note to the trial court through the bailiff. The note asked, “Are the Walla Walla county jail policies legally binding? Are they considered law? What if we are not unanimous on a certain count?” The trial court, counsel, and Dunleavy discussed how the trial court should respond. The trial court’s response read, “You are to review the evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a verdict.” No party objected to this response.

Less than one hour later, the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and third degree theft but not guilty of second degree assault.


Dunleavy appealed on the issues of whether (1) jail cells are separate buildings for purposes of proving burglary, and (2) whether there is an  implied license for unlawful entry.


1. Jail cells are separate buildings for purposes of proving burglary.

The Court of Appeals reasoned that under statute, a person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling. Furthermore, Washington law defines “building” in relevant part as any structure used for lodging of persons; each unit of a building consisting of two or more units separately secured or occupied is a separate building.

With these legal definitions in mind, the court noted that that a jail is a building used for lodging of persons, specifically inmates. Each cell is secured at night and an inmate can secure his cell from others. Furthermore, each cell is separately occupied by two inmates. “We discern no ambiguity,” said the Court of Appeals. “A jail cell is a separate building for purposes of proving burglary.”

2. No implied license for unlawful entry.

The Court of Appeals raised and dismissed Dunleavy’s arguments that he did not commit burglary when he entered LaMunyon’s cell because his entry was lawful from an implied license to enter the cell.

Contrary to Dunleavy’s argument, the Court explained that under Washington law, a person ‘enters or remains unlawfully’ in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.”

The Court of Appeals explained that the victim, LaMunyon, did not give Dunleavy permission to enter his cell. Furthermore, the Jail Sergeant testified that inmates are told when they are first booked into jail that they may not enter another inmate’s jail cell.

“Inmates are subject to punishment for breaking these rules, including criminal charges,” said the Court of Appeals. “A rational jury could find beyond a reasonable doubt that Dunleavy entered LaMunyon’s cell unlawfully.”

Consequently, the Court of Appeals affirmed Dunleavy’s conviction, yet remanded for resentencing on the separate issue that his offender score was incorrectly calculated.

“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.


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.


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

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.

ER 404(B) and “Lustful Disposition”

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In State v. Gonzales, the WA Court of Appeals held that a trial court did not commit error in admitting evidence that, after the charged conduct, the victim observed the defendant masturbating while holding the victim’s bra.


When J.G. was six years old, she and her younger brother moved in with their grandfather, defendant Eddy Gonzales and his wife. This sexual abuse ended when J.G. was ten or eleven years old. But after the molestation stopped, J.G. once encountered Gonzales masturbating in his room while holding her bra.

When J.G. was eleven years old, she moved out of the house. She informed family members of the molestation. They, in turn, contacted police; who later arrested Mr. Gonzales.

Gonzales was charged with first degree rape of a child and first degree child molestation. The State later added a second count of first degree child rape and charged him with tampering with a witness.

At trial, the Court admitted testimony that he masturbated while holding J.G.’s bra.

The jury acquitted Gonzales of one count of first degree child rape, but found him guilty of the remaining charges. Among other issues not discussed here, Gonzales appealed on the issue of whether the trial court wrongfully admitted that evidence. He argued this uncharged misconduct goes to propensity and should be excluded under ER 404(b). He argues the trial court wrongfully admitted this testimony to show his “lustful disposition” toward J.G., particularly because it occurred after the charged conduct.


First, the Court of Appeals described the rules of evidence which allow or disallow the evidence from getting to the jury. In short, (ER) 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for “other purposes.”

Consequently, the Court reasoned that Washington courts have consistently held one such other purpose is evidence of collateral sexual misconduct when it shows the defendant’s lustful disposition toward the victim. This is because a lustful disposition makes it more likely that the defendant committed the crime charged. Evidence of uncharged sexual misconduct occurring before or after the charged acts is admissible. In an ER 404(b) analysis, the trial court must balance and weigh probative value against the potential for unfair prejudice.

Second, the Court of Appeals applied the law to its reasoning. It said that here, the trial court admitted J.G.’s testimony that she saw Gonzales masturbating while holding her bra. The trial court reasoned that Gonzales’s behavior was sexual conduct that showed lustful disposition toward J.G. The trial court also found that the probative value of the evidence was not outweighed by unfair prejudice.

“The trial court did not abuse its discretion,” said the Court of Appeals. “Gonzales’s action shows a sexual desire for J.G. Thus, it goes toward an ‘other purpose’ as provided under ER 404(b).”

Third, the Court of Appeals rejected Gonzales’s arguments that any uncharged sexual misconduct is unfairly prejudicial in a sex abuse prosecution. It reasoned that the admitted evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and J.G. was only indirectly victimized by it.

Finally, the Court of Appeals rejected Gonzales’s arguments that the admitted testimony had diminished probative value because the incident occurred after the alleged abuse. The Court of Appeals reasoned that an act occurring after the charged abuse is relevant to lustful disposition. It was not an abuse of discretion to conclude that the probative value of this testimony was not outweighed by unfair prejudice.

With that, the Court of appeals affirm the admission of the “lustful disposition” testimony under ER 404(b) and upheld Mr. Gonzalez’s conviction.

My opinion?

It’s tricky to predict whether judges will admit or deny evidence when the evidence is offered for “other purposes” under ER 404(b). Judges have lots of discretion an how and where the rule applies. Still, judges must follow the doctrine of stare decisis and make rulings which are consistent existing case law when rendering decisions.

Fortunately, I’m quite familiar with the case law on this subject. Please contact my office if you, a friend or family member faces charges and the State wants to offer evidence of the offender’s behavior which falls outside the scope of the immediate facts that are alleged. Perhaps a well-argued pretrial motion to suppress evidence could change the complexion of the case and result in reducing or dismissing the charges.

Driverless Cars for Crime?

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Informative article by Tim Johnson of McClatchy DC Bureau reports that driverless cars could potentially be used by criminals, hackers and terrorists who want to employ them for mayhem and criminal purposes.

“Self-driving cars may enable new crimes that we can’t even imagine today,” said Patrick Lin, director of the Ethics + Emerging Sciences Group at California Polytechnic University.

Johnson reports that the manufacture of self-driving cars is already underway among major automakers and Silicon Valley tech giants, and a handful of current models allow limited hands-free driving and even park themselves. Before long, experts say, totally autonomous vehicles will hit the roads, starting with taxis and fleet delivery vehicles.

The clearly visible potential danger, Lin and others say, focuses on vulnerability to hackers who could turn driverless autos into vehicles for mayhem if not into weapons themselves.


Lots of questions remain over whether the electronic systems of self-driving vehicles can be made tamperproof, and if humans aboard will be able to override if systems go haywire.

Some engineers say glitches are common and adoption is likely to be gradual.

“Most people don’t understand how easy it is to hack into a driverless car, and then basically steer it off course,” said Dr. Mary Cummings, a former Navy fighter pilot who heads the Humans and Autonomy Laboratory at Duke University’s Pratt School of Engineering.

Cummings said she views hackers as a greater threat than criminals or terrorists when it comes to autonomous vehicles.

“There’s no way I’d put my kid in a driverless car right now,” Cummings said.


Johnson reports that the FBI, in an unclassified report obtained by The Guardian in 2014, voiced concerned about how “game changing” autonomous cars may become for criminals, hackers and terrorists, turning the vehicles into more potentially lethal weapons than they are today. An FBI spokesperson did not immediately respond to a query about the impact of autonomous cars on law enforcement.

“The FBI is already worried about robo-getaway drivers, which frees up a suspect to shoot back,” Lin said. “Criminals might be able to make a better escape, if a road full of self-driving cars will always move out of the way when you threaten a collision.”

Criminals might commandeer self-driving vehicles and trap passengers inside until they pay a ransom, Lin said, or use camera-equipped models to case robbery locations over longer periods since the cars don’t need to eat or sleep. They can ditch accomplice drivers, who often have loose lips, as they conduct crimes.

Society still has to decide how much invasive technology it will permit in self-driving cars in the name of safety, experts said. Should they contain sensors to detect explosives or narcotics to halt terrorism and crime? Cameras to record what happens inside the vehicles?

“If law enforcement pulls over an empty self-driving car that’s carrying contraband, they can likely track down the user,” Lin said. “Cars aren’t as disposable as burner phones.”


Johnson reports that fears that hackers or terrorists could commandeer vehicles captivate the common imagination, fueled by Hollywood. Last year’s hit “The Fate of the Furious,” which tallied $1.1 billion in box office earnings, portrayed elite hackers guiding hundreds of cars speeding down New York’s Seventh Avenue, turning them into battering rams.

A less cinematic scenario, experts say, is that terrorists might use only one or two autonomous vehicles in an attack, perhaps blocking a tunnel leading into a metropolis to divert attention from a pending attack elsewhere in the city.

Terrorists might seek to program autonomous vehicles to carry out attacks far in the future, with explosives or as a weapon to plow into crowds.

“Can I instruct a car to do something a year in advance? What if I’ve been dead for most of that year?” asked Martin C. Libicki, an information technology and national security expert.

Such fears tend to eclipse consideration of how self-driving vehicles are bound to lead to a steady, dramatic drop in traffic fatalities. In 2016, 37,461 people died in traffic accidents.

“All of these things are evaluated through a political filter. Nobody writes headlines about the person who didn’t die in an auto accident. Everybody will write headlines about the person who died because of a self-driving car,” Libicki said.

The vast majority of fatalities are caused by drivers who are distracted, drunk, not wearing seat belts, sleepy or otherwise not paying full attention.

“Ninety-four percent of all crashes have an element of human error. We’re talking about enormously significant numbers,” said David Strickland, counsel for the Self-Driving Coalition for Safer Streets, a group representing companies like Ford, Uber, Lyft and Volvo developing autonomous vehicles.

“This is going to sound cold hearted,” began Arthur Rizer, director of criminal justice at R Street Institute, a conservative think tank in Washington, but the terrorist danger from autonomous vehicles “is minute compared to the lives that we will save just from reducing traffic accidents.”

Rizer said police departments across the country might face a drop in income as traffic fines and tickets decrease. Self-driving vehicles will be programmed to obey traffic laws. Traffic tickets cost drivers an average of $150.

“Revenue will plummet. Also, court revenues will plummet because courts make a lot of their money off of fees,” said Rizer, a former police officer and Justice Department prosecutor. Rizer said reducing the focus of police on traffic violations will certainly be part of a changing landscape for police forces brought about by autonomous vehicles. But he said police, too, will be freed somewhat from traffic patrols.

Yet to be seen is whether law enforcement will be empowered with remote “kill switches” for officers to use if they deem a self-driving vehicle to be operating suspiciously.

Lin concurred that as resources shift, police tactics will also need to shift.

“The police will no longer have a pretext for stopping a car if the vehicle never speeds, never drives recklessly, and so on,” Lin said. “Resources for highway patrols could be shifted to more targeted operations, if fewer traffic cops are needed.”

WA Death Penalty To End?

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Excellent article reporter Max Wasserman of the News Tribune reports that lawmakers are optimistic that 2018 may bring the end of Washington’s death penalty, following changes in senate leadership and years of stalled attempts in the state Legislature.

Wasserman reports that under current state law, individuals found guilty of aggravated first-degree murder can be put to death by hanging or lethal injection. The latest bill would replace that sentence with life imprisonment without the possibility of parole. Should it pass, Washington would a list of other states that have eliminated capital punishment in recent decades.

Wasserman also reports that the new chair on the committee overseeing the bill, state Sen. Jamie Pedersen, D-Seattle, expects the current push to abolish the death penalty to make it through the senate and possibly to the governor’s desk — the farthest any related bill would have made it in five years.

“The stars may be aligning now for support of doing away with the death penalty,” Pedersen said.

Washington’s death penalty has been seldom used in recent years. In 2014, Washington Gov. Jay Inslee placed a moratorium on capital punishment, suspending the practice for as long as he’s in office. The state’s last execution occurred in 2010 when Cal Coburn Brown, convicted for the 1991 rape and murder of 21 year-old Holly Washa, was put to death by lethal injection.

Despite its lack of use, the death penalty remains on the books in Washington. Attempts to match the governor’s position in the legislature have stalled in the past five decades, despite widespread support among lawmakers for abolishing it.

Wasserman reports that some place blame with prior leadership of the senate’s Law and Justice Committee. Sen. Mike Padden, R-Spokane Valley, who has been replaced by Pedersen as chairman of that committee, would not grant past death-penalty bills a hearing.

“I don’t anticipate I’ll be supporting the bill,” Padden said this week. “Some crimes are so heinous and so brutal that I think the death penalty is appropriate”

Padden pointed out that capital punishment also has been used as a negotiating tool against some of the state’s most egregious offenders, including serial killer Gary Ridgway. Ridgway — also known as the Green River killer — agreed to tell prosecutors the whereabouts of victims in exchange for the death penalty being taken off the table in his case.

Apparently, the state’s prosecutors are split on whether to abolish the death penalty.

“The death penalty is a question with profound moral implications, certainly worthy of wide discussion,” Pierce County Prosecuting Attorney Mark Lindquist said. “That discussion should not be limited to legislative debate in Olympia, but instead should be the subject of civic dialogue around the entire state.”

Tom McBride, the executive director of the Washington Association of Prosecuting Attorneys, defended the death penalty while leaving the door open for future reform.

“The constitutionality and evenhanded imposition of the death penalty in Washington State are issues that we will defend; but the costs, timely imposition and ultimate appropriateness of death for aggravated murder is certainly open to debate,” McBride told The News Tribune via email.


Wasserman reports that critics of the death penalty have long scrutinized the practice as a high-stakes arm of an imperfect justice system that can — and has — executed innocent people. More than 150 people nationwide have been exonerated from death row since 1973, according to data from the National Coalition to Abolish the Death Penalty (NCADP).

One of those cases occurred in Washington. Benjamin Harris was sentenced to death in 1986 for the murder of Jimmie Lee Turner, a Tacoma auto mechanic, only to have the charges dropped on appeal 11 years later. Inadequate defense counsel may have led to Harris’ initial conviction, a point NCADP program director Toni Perry believes is emblematic of wealth disparities in capital sentencing.

“Minorities, persons with diminished capacities who can’t defend themselves, who can’t get a good attorney — it’s arbitrary. There are no rich people on death row,” Perry said.

The death penalty also comes with fiscal baggage. Largely due to legal fees in the appeal process, the death penalty costs an average $1 million more per case than life imprisonment in Washington, according to a 2015 Seattle University study of state convictions.

For these reasons, Washington Attorney General Bob Ferguson called upon the Legislature to do away with the practice last year. Five states — New Jersey, New Mexico, Illinois, Connecticut and Maryland — have since 2007 passed legislation to eliminate their death penalty.

“There is no role for capital punishment in a fair, equitable and humane justice system,” Ferguson, who requested this year’s bill, said in 2017 press release.

“Whether new leadership and a Democratic majority will be enough to achieve the goal one year later remains to be seen,” reports Wasserman.


Glaring During Trial

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In State v. Sagethe WA Court of Appeals held that a trial court did not abuse its discretion by denying the defendant’s motion for a mistrial based upon the victim’s behavior – glaring at the defendant – when called to the stand.


Jonathan Sage faced four counts of second degree rape of a child. He was alleged to have engaged in sexual acts with minors J.M. and E.M., and came into contact with the two brothers because he owned a company at which J.M. and E.M.’s mother worked.

The case proceeded to trial. During proceedings, the victim E.M. glared at Sage as he entered the courtroom. Sage’s defense attorney objected and requested an immediate mistrial. He described the interaction as follows:

“E.M. walked past defense counsel and hissed at the Defendant, bent down, and made an aggressive stare. As best as I could tell, the jurors looked horrified. Their reaction is clear that the stance or that moment is going to live in their minds as opposed to what he
testifies to. My client has a right to a fair trial, to be presumed innocent, and I don’t know that he can get a fair trial with this jury after that behavior.”

Although the trial judge sustained defense counsel’s objection, the court denied the motion for mistrial and instructed the jury to disregard E.M.’s behavior.

The jury convicted Sage on all four counts and, by special verdict, found the alleged aggravating circumstances had been established. The court concluded the aggravating circumstances were substantial and compelling reasons to impose an exceptional sentence.

Sage appealed his conviction and his exceptional sentence under the argument that his motion for a mistrial should have been granted because E.M.’s courtroom behavior prejudiced the jury.


The Court of Appeals reasoned that a trial court should only grant a mistrial when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried. To determine the effect of the irregularity leading to the request for a mistrial, the court examines: (i) its seriousness; (ii) whether it involved cumulative evidence; and (iii) whether the trial court properly instructed the jury to disregard it.

“Here, E.M. entered the courtroom and glared at Sage,” said the Court of Appeals. “The trial court denied Sage’s motion for mistrial and entered a detailed ruling on the record. Unlike a verbal outburst or threatening gesture, E.M. glared at Sage. The court gave a curative instruction. E.M. did not repeat the behavior after the trial court instructed the jury to disregard the behavior,” said the Court of Appeals. “We conclude the trial court did not abuse its discretion.” Also, the Court of Appeals upheld Sage’s exceptional sentence based on aggravating factors.

With that, the Court upheld Sage’s conviction and exceptional sentence.

A Vehicle is a “Premises”

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In State v. Joseph, the WA Supreme Court held that a vehicle is a “premises” for the purpose of the second degree criminal trespass statute because a vehicle is a type of “building” and “premises” includes “any building.”


On October 4, 2014, police responded to a report of vehicle prowling. The responding officer found defendant Anthony Joseph asleep in an unlocked Chevy Blazer on a public street in Ellensburg. The officer recognized Joseph and knew that he was homeless. The officer contacted Joseph and told him to exit the vehicle.

Initially, Joseph said that he had the owner’s permission; however, he then admitted he did not, and was arrested for vehicle prowling. The State filed charges of third degree assault and second degree vehicle prowling.’ The matter proceeded to a jury trial. The State sought jury instructions on first and second degree criminal trespass as lesser included offenses of the vehicle prowling charge. The trial court refused to instruct the jury on first degree trespass, but instructed the jury on second degree trespass, over Joseph’s objection. The State asked the court to define the term “premises” used in the second degree criminal trespass statute, but did not submit a definitional instruction. The trial court did not define “premises,” but allowed the parties to argue whether this term included a motor vehicle.

The jury acquitted Joseph of vehicle prowling, but found him guilty of second degree criminal trespass. Joseph appealed, and the Court of Appeals, Division Three affirmed his conviction, holding that a motor vehicle constitutes premises for purposes of second degree criminal trespass.


Whether second degree criminal trespass is a lesser included offense of second degree vehicle prowling.


“This case presents a challenging question of statutory interpretation because of the overlapping and intersecting definitions of ‘building’ and ‘premises’ in Title 9A RCW,” said the Court. It reasoned that although no definition of the word “building” is available in the criminal statutes, a definition of “building” is found in RCW 9A.04.110(5), which states the following:

“(5) ‘Building,’ in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale, or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.”

Next, the Court engaged a lengthy discussion about overlapping definitions of “premises” and “building” as they applied to legislative amendments to the criminal trespass statute and the Washington Pattern Jury Instructions.

Also, the court said that the legislature plainly intended second degree criminal trespass to encompass trespass into any “building” as defined in the criminal code, RCW 9A.04.110(5), save for trespass into a building in its ordinary sense. “This interpretation properly restricts first degree trespass to unlawful entries into ordinary ‘buildings,’ a descriptor that needs no further definition,” said the Court.

The more severe charge (a gross misdemeanor) is justified by the increased likelihood of trespass into a home or business.

“All other trespasses fall under the term “premises” and are treated as simple misdemeanors. RCW 9A.52.080. This includes trespasses into premises that are “buildings” broadly conceived, but are not ordinarily thought of as buildings—as relevant here, vehicles.”

The Court reasoned that under this interpretation, the trial court properly instructed the jury on second degree criminal trespass as a lesser included offense of second degree vehicle prowling. “Because the evidence supports the jury’s verdict, we affirm Joseph’s

My opinion? Clearly, legal definitions can be broadly interpreted; sometimes to the point of absurdity. However, it is not unreasonable to accept the notion that vehicles can actually be a premises. Many impoverished people live and sleep in their vehicles. If a man’s home is his castle, and the castle is a vehicle, then the vehicle is his castle, no?

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

The Feds on Crime Under Jeff Sessions

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 of the Washington Post describes the dramatic and controversial changes in policy Jeff Sessions has made since becoming the Attorney General under President Trump months ago.
“From his crackdown on illegal immigration to his reversal of Obama administration policies on criminal justice and policing, Sessions is methodically reshaping the Justice Department to reflect his nationalist ideology and hard-line views — moves drawing comparatively less public scrutiny than the ongoing investigations into whether the Trump campaign coordinated with the Kremlin.”
Apprently, Sessions has even adjusted the department’s legal stances in cases involving voting rights and lesbian, gay, bisexual and transgender issues in a way that advocates warn might disenfranchise poor minorities and give certain religious people a license to discriminate.
“The Attorney General is committed to rebuilding a Justice Department that respects the rule of law and separation of powers,” Justice Department spokesman Ian Prior said in a statement, adding, “It is often our most vulnerable communities that are most impacted and victimized by the scourge of drug trafficking and the accompanying violent crime.”

Zapotsky and Horwitz write that unlike past attorneys general, Sessions has been especially aggressive on immigration. He served as the public face of the administration’s rolling back of a program that granted a reprieve from deportation to people who had come here without documentation as children, and he directed federal prosecutors to make illegal-immigration cases a higher priority. The attorney general has long held the view that the United States should even reduce the number of those immigrating here legally.

Zapotsky and Horwitz said that in an interview with Breitbart News in 2015, then-Sen. Sessions (R-Ala.) spoke favorably of a 1924 law that excluded all immigrants from Asia and set strict caps on others.

“When the numbers reached about this high in 1924, the president and Congress changed the policy and it slowed down immigration significantly,” Sessions said. “We then assimilated through 1965 and created really the solid middle class of America, with assimilated immigrants, and it was good for America.”

According to Zapotsky and Horwitz, Vanita Gupta, the head of the Justice Department’s civil rights division in the Obama administration who now works as chief executive of the Leadership Conference on Civil and Human Rights, said Sessions seems to harbor an “unwillingness to recognize the history of this country is rooted in immigration.”

“On issue after issue, it’s very easy to see what his worldview is of what this country is and who belongs in this country,” she said, adding that his view is “distinctly anti-immigrant.”


Police Oversight & Sentencing

Zapotsky and Horwitz write that questions about Sessions’s attitudes toward race and nationality have swirled around him since a Republican-led Senate committee in 1986 rejected his nomination by President Ronald Reagan for a federal judgeship, amid allegations of racism. In January, his confirmation hearing to become attorney general turned bitter when, for the first time, a sitting senator, Cory Booker (D-N.J.), testified against a colleague up for a Cabinet position. Booker said he did so because of Sessions’s record on civil rights.

Sessions ultimately won confirmation on a 52-to-47 vote, and he moved quickly to make the Justice Department his own. Two months into the job, he told the department’s lawyers to review police oversight agreements nationwide, currying favor with officers who often resent the imposition of such pacts but upsetting those who think they are necessary to force change.

Zapotsky and Horwitz also said that Sessions imposed a new charging and sentencing policy that critics on both sides of the aisle have said might disproportionately affect minority communities and hit low-level drug offenders with stiff sentences.

“Allies of Sessions say the policy is driven not by racial animus but by a desire to respond to increasing crime,” write Zapotsky and Horwitz. “The latest FBI crime data, for 2016, showed violent crimes were up 4.1 percent over the previous year and murders were up 8.6 percent — although crime remains at historically low levels. The Bureau of Prisons projects that — because of increased enforcement and prosecution efforts — the inmate population will increase by about 2 percent in fiscal 2018, according to a Justice Department inspector general report.”

Zapotsky and Horwitz wrote that Larry Thompson, who served as deputy attorney general in the George W. Bush administration and is a friend of Sessions, said that although he disagrees with the attorney general’s charging policy, he believes Sessions was “motivated by his belief that taking these violent offenders off the streets is the right way to address the public safety issues.”

Civil Rights & Hate Crimes

According to Zapotsy and Horwitz, Sessions’s moves to empower prosecutors have led to a concerted focus on hate-crimes prosecutions — a point his defenders say undercuts the notion that he is not interested in protecting the rights of minorities or other groups. Prosecutors have brought several such cases since he became attorney general and recently sent an attorney to Iowa to help the state prosecute a man who was charged with killing a gender-fluid 16-year-old high school student last year. The man was convicted of first-degree murder.

But while civil rights leaders praised his action in that case, Kristen Clarke, president and executive director of the national Lawyers’ Committee for Civil Rights Under Law, said that it “stands in stark contrast to his overall efforts” to roll back protections for transgender people.

Shortly after he became attorney general, Sessions revoked federal guidelines put in place by the Obama administration that specified that transgender students have the right to use public school restrooms that match their gender identity. In September, the Justice Department sided in a major upcoming Supreme Court case with a Colorado baker, Jack Phillips, who refused to bake a wedding cake for a same-sex couple because he said it would violate his religious beliefs.

Sessions recently issued 20 principles of guidance to executive-branch agencies about how the government should respect religious freedom, including allowing religious employers to hire only those whose conduct is consistent with their beliefs. About the same time, he reversed a three-year-old Justice Department policy that protected transgender people from workplace discrimination by private employers and state and local governments.

The Justice Department has similarly rolled back Obama administration positions in court cases over voting rights.

In February, the department dropped its stance that Texas intended to discriminate when it passed its law on voter identification. And in August, it sided with Ohio in its effort to purge thousands of people from its rolls for not voting in recent elections — drawing complaints from civil liberties advocates.

At a recent congressional hearing, Sessions said the department would “absolutely, resolutely defend the right of all Americans to vote, including our African American brothers and sisters.”

According to Zapotsky and Horwitz, critics say that Sessions’ record shows otherwise. “We are seeing a federal government that is pulling back from protecting vulnerable communities in every respect,” Clarke said. “That appears to be the pattern that we are seeing with this administration — an unwillingness to use their enforcement powers in ways that can come to the defense of groups who are otherwise powerless and voiceless.”

My opinion? Watching the actions of the feds – and especially the top federal prosecutor for the United States – gives us a litmus test which defines the shape of things to come on a more local level. The reason why it’s important to watch the movements of federal prosecutions is because they impress upon – and persuade – the priorities of state prosecutions.

Let’s see what happens.

Corpus Delicti & Drugs

Image result for “8-ball” coke

In State v. Hotchkiss, the WA Court of Appeals held that, despite the corpus delicti defense, the discovery of 8.1 grams of methamphetamine and $2,150 in cash during a search of the defendant’s home, provided sufficient corroborating evidence of possession of methamphetamine with intent to deliver.


Law enforcement officers executed a search warrant on Hotchkiss’s residence in Vancouver. During the search, Hotchkiss admitted that he had an “8-ball” – approximately 3.8 grams – of methamphetamine in a safe and provided the officers with the code. He also stated that he procured about one 8-ball of methamphetamine every day and broke it down, and estimated that he had about 10 customers. Inside the safe, officers found 8.1 grams of methamphetamine and $2,150 in cash.

The State charged Hotchkiss with possession of a controlled substance with intent to deliver – methamphetamine. At a bench trial, officers testified about finding the methamphetamine and cash and about Hotchkiss’s statement that he had 10 methamphetamine customers. After the State rested, Hotchkiss requested that the trial court disregard the testimony regarding his incriminating statement under the corpus delicti rule because there was insufficient evidence corroborating his statement. The court reserved its ruling on the corpus delicti issue.

Hotchkiss then testified that he and a woman who lived with him used three or four grams of methamphetamine per day. He also testified that the cash in the safe came from other people living at his residence, who paid rent of $1,150 per month in cash, and from his employment. He claimed that any statement he made to the officers about selling methamphetamine referred to his actions 20 years earlier.

On rebuttal, an officer with extensive experience dealing with methamphetamine users
and sellers testified that a typical methamphetamine dose is 0.2 to 0.4 grams. He also testified that it would be very rare that someone would possess eight grams of methamphetamine solely for personal use.

The trial court found that the quantity of methamphetamine in Hotchkiss’s possession
combined with the amount of cash recovered with the drugs was sufficient corroborating
evidence to satisfy the corpus delicti rule. The court then found Hotchkiss guilty of possession of methamphetamine with intent to deliver. Hotchkiss appeals his conviction.


The Court of Appeals reasoned that the corpus delicti rule prevents the State from establishing that a crime occurred solely based on the defendant’s incriminating statement. The State must present corroborating evidence independent of the incriminating statement that the charged crime occurred. Without such corroborating evidence, the defendant’s statement alone is insufficient to support a conviction.

The Court then addressed the question of whether there was enough independent evidence to support the conviction for possession of methampetamine with intent to deliver.

“The general rule is that mere possession of a controlled substance, including quantities greater than needed for personal use, is not sufficient to support an inference of intent to deliver,” said the Court. Here, the State presented evidence that (1) Hotchkiss had 8.1 grams of methamphetamine in his possession; (2) given an average dose size of 0.2 to 0.4 grams, such an amount typically would produce 20 to 40 doses; and (3) it would be very rare for a person to possess that amount merely for personal use.

The Court reasoned that under the general rule, this evidence standing alone would not be sufficient either to convict Hotchkiss of possession of methamphetamine with intent to deliver or to provide corroborating evidence under the corpus delicti rule.

“But the State presented evidence of an additional factor suggestive of intent to deliver –
$2,150 of cash in Hotchkiss’s safe next to the methamphetamine,” said the Court. “This methamphetamine and cash evidence would be sufficient to support a conviction for possession of methamphetamine with intent to deliver.”

With that, the Court of Appeals concluded that the State satisfied the corpus delicti rule and affirmed Hotchkiss’ conviction of possession of methamphetamine with intent to deliver.

My opinion? Corpus Delicti is a tricky defense. It usually works best in cases where there is a gaping hole between the corroborating evidence and the defendant’s statements.

For example, let’s say that police received a 911 call about a red truck driving around in your neighborhood swerving in an out of traffic. The police respond to the call, drive to your neighborhood, and look a for a red truck. They find one parked at your home. They knock on your door. You open the door. You’re intoxicated from drinking alcohol.

“Were you driving?” asked the police.

“Yes,” you say. Police immediately arrest you for DUI.

Corpus delicti would be the appropriate defense in a case like this. Under our current DUI laws, the State must prove that not only were you driving that particular red truck, but that you were under the influence of alcohol when driving. In short, corpus delicti ensures that your statements and admission shall not be used against you in cases where there is a lack of independent evidence supporting your statements.

Please contact my office if you, a family member of friend face criminal charges with weak and/or questionable evidence supporting the charges. No matter what a person’s admissions are, we have the constitutional right to question the sufficiency of the evidence supporting the charges and perhaps argue the corpus delicti defense.

Excessive Tasing

Image result for police tasing

In Jones v. Las Vegas Metropolitan Police Dept., the Ninth Circuit Court of Appeals held that any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public. However, such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime.


In the early morning of December 11, 2010, Officer Mark Hatten of the Las Vegas Metropolitan Police Department pulled over Anthony Jones for a routine traffic stop. Hatten ordered Jones out of the car so he could pat him down for weapons. Jones obeyed at first but then started to turn toward Hatten. Scared of the much larger Jones, Hatten drew his firearm, pointed it at Jones and ordered him to turn back around. Instead, Jones sprinted away.

Hatten called for backup and pursued Jones. Hatten didn’t believe deadly force was necessary because Jones hadn’t threatened him and didn’t appear to have a weapon.

As he waited for other officers to arrive, Hatten used his taser to subdue Jones. Hatten fired his taser twice, causing Jones’s body to “lock up” and fall to the ground face down with his hands underneath him. Hatten proceeded to kneel on Jones’s back in an attempt to handcuff Jones, keeping his taser pressed to Jones’s thigh and repeatedly pulling the trigger.

Hatten continued to tase Jones even after backup arrived. Backup consisted of four officers: Richard Fonbuena on Hatten’s right side, who helped handcuff Jones; Steven Skenandore, who controlled Jones’s legs and feet; Timothy English at Jones’s head, who applied a taser to Jones’s upper back; and Michael Johnson, who arrived last and ordered the tasing to stop. Johnson wanted his officers to “back off on the tasers so that Jones’s muscles would relax.” According to Johnson, Jones “didn’t look like he was physically resisting” and there were “enough officers” to take Jones into custody.

In all, Jones was subjected to taser shocks for over ninety seconds: Hatten tased Jones essentially nonstop that whole time—with some applications lasting as long as nineteen seconds—and, for ten of those seconds, English simultaneously applied his taser.

Once the officers stopped tasing Jones, his body went limp. They sat him up but Jones was nonresponsive and twitching; his eyes were glazed over and rolled back into his head. The officers tried and failed to resuscitate him. Jones was pronounced dead shortly thereafter. The coroner’s report concluded that “police restraining procedures”—including the tasings—contributed to Jones’s death.

Jones’s parents sued the Las Vegas Metropolitan Police Department and all of the officers involved in restraining Jones. They alleged Fourth and Fourteenth Amendment violations as well as various state law torts. However, the lower district court granted summary judgment for the defendants on all claims. The plaintiff’s appealed.


Whether police officers are entitled to qualified immunity when they’re alleged to have caused the death of a suspect by using tasers repeatedly and simultaneously for an extended period.


As a preliminary matter, the Court of Appeals held that under Fed. R. Civ. P. 17, the lower district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party and thus cure the defective complaint.

Next, the Court of Appeals addressed the issue of whether the officers were reasonable in the degree of force they deployed. They held that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable and that a jury could reasonably conclude that the officers knew or should have known that these actions created a substantial risk of serious injury or death:

” . . . any reasonable officer would have known that continuous, repeated, and simultaneous tasings could only be justified by an immediate or significant risk of serious injury or death to officers or the public.”

The Court also reasoned that that such force generally cannot be used on a prone suspect who exhibits no resistance, carries no weapon, is surrounded by sufficient officers to restrain him and is not suspected of a violent crime. Furthermore, it reasoned that given that there was clearly established Fourth Amendment law and a jury could reasonably conclude that the officers used excessive force, the question of qualified immunity must proceed to trial.

Furthermore, the Court held that the plaintiff’s state law battery and negligence claims were triable, and should not have been dismissed by the lower district court. It said that while there was no evidence that any of the officers acted out of hostility or improper motive, there was a factual dispute as to whether the repeated and simultaneous tasings were so excessive under the circumstances that they amounted to willful or deliberate disregard of Jones’s rights. The Court of Appeals therefore remanded plaintiffs’ battery and negligence claims.

In a twist, however, The Court of Appeals affirmed the lower district court’s dismissal of the
Fourteenth Amendment claim. It said that even assuming all the facts Plaintiffs alleged, there was no evidence that the officers acted with a purpose of harming Jones that was unconnected to a legitimate law enforcement objective.

In another twist, the Court of Appeals held that the Plaintiffs’ false arrest and false imprisonment claims failed because there was no evidence that the decision to arrest Jones lacked justification, let alone that it was made in bad faith. The Court of Appeals therefore affirmed the dismissal of that claim.

My opinion? A well-reasoned, good decision. Although the Court of Appeals upheld the dismissal of some of the Plaintiffs’ claims due to lack of evidence, the Court was ultimately convinced that the officers’ repeated and simultaneous use of tasers for over ninety seconds was unreasonable. Good decision.