Category Archives: Violent Crime

Prostitution Evidence Admitted During Defendant’s Assault Trial.

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In State v. Woods, the WA Court of Appeals held that evidence that the defendant prostituted the victim was properly admitted in his prosecution for second degree assault by strangulation. These prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS.

The Defendant Euran Woods and victim BrittanyEnglund began their volatile relationship in 2009. At that time, Woods and Englund sold drugs together and Englund herself was addicted to drugs. As Englund’s drug addiction grew, so did her dependency on Woods— who exploited this dependency to isolate Englund from her friends and family. In addition to being emotionally abusive, Woods physically abused Englund throughout their relationship.

In 2011, Woods began forcing Englund to prostitute herself. He conditioned Englund to comply with his demands by convincing her that her life of prostitution was only temporary and that one day they would both have normal jobs and be happy together.

Englund argued with Woods regarding the prostitution several times. On one occasion in August of 2011, Woods strangled Englund until she passed out. Englund did not inform the police or her family of the abuse or prostitution both out of fear that Woods would retaliate and because she felt that Woods loved her and was sorry.

However, Woods strangled Englund again in September of 2011 after she discovered  he had been taking suggestive pictures with other women. Woods threw Englund across the room, kicked her, stomped on her, and strangled her until she passed out. Woods later apologized to Englund, who decided to not call the police.

In April of 2012, Woods again assaulted Englund. Her mother drove her to the hospital. Englund disclosed the 2011 assaults for the first time during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL.

Woods was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of the August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the victim’s state of mind.  The trial court also noted that—in matters dealing with domestic violence—testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the victim’s credibility.

The jury found Woods guilty. He timely appealed. Although his attorney filed an Anders brief on arguments that the appeal was frivolous, the WA Court of Appeals nevertheless granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals illustrated that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge 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.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein werecorrect. Englund’s testimony as to how Woods forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, Woods’ forced prostitution of Englund was a source of shame and fear for Englund and was an important factor in understanding why she refused to seek help from her friends, family, and the police.

Ineffective Assistance of Counsel

The Court illustrated how Constitutionally ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected Wood’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, Woods’ counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

Woods also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of Woods’ defense attorney: “Defense counsel argued to the jury that Woods did not cause Englund’s injuries. Rather, he posited, those injuries could have been a result of Englund’s prostitution.” Thus, deficient performance was not established.

With that, the COurt of Appeals held that Woods was not prejudiced and upheld his conviction.

Brady v. Maryland to the Rescue

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In United States v. Yepiz, the Ninth Circuit Court of Appeals remanded the convictions for numerous defendants so that it may engage in the necessary fact-finding to ascertain whether a government’s witness received benefits that were undisclosed to the defendants at the time of trial.

The defendants are all alleged to be members or associates of the Vineland Boys (“VBS”), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78-count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS.

Seven of the nine defendants were charged with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and with RICO conspiracy, and all appellants were charged with federal distribution of narcotics. Other charged counts included violent crimes in aid of racketeering (“VICAR”), attempted murder, and possession with intent to distribute cocaine, methamphetamine, and marijuana.

Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. The defendants timely appealed their convictions and sentences. This case was vigorously litigated over the course of two-and-a-half months. It presented the federal district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics.

At trial, one of the government’s cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness.

Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was “a glaring mistake,” but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.

Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of defendant Horacio Yepiz. On direct examination, Bulgarian once again testified to having received no benefit from the government in return for his testimony. On cross examination, however, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted (“I decide when I want to work, and when I work, I get paid.”). Indeed, he testified to having received $800 for three hours of work the week prior.

Appellants now argue that the government violated Brady v. Maryland by failing to disclose the full extent of the benefits Bulgarian received at trial. For those who don’t know, Brady v. Maryland was a landmark United States Supreme Court case that established that the prosecution must turn over all evidence that might exonerate the defendant (exculpatory evidence) to the defense.

On Appeal, the Ninth Circuit reasoned that, under Brady, the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

The Ninth Circuit further reasoned that in order to prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.”

Here, the Ninth Circuit ruled that the government’s attempts to minimize the significance of Bulgarian’s testimony are not persuasive in light of the record:

“While some of Bulgarian’s testimony was independently corroborated, it nonetheless played a substantial role in the government’s case-in-chief. In particular, Bulgarian’s testimony was relied upon heavily by the government to show that VBS was a ‘criminal enterprise’ under RICO. Therefore, had the alleged Brady materials been made available to appellants at trial, there is a “reasonable probability” that the result of the proceeding would have been altered.”

With that, and In light of the disputed facts surrounding defendants’ Brady claim, the Ninth Circuit remanded the convictions to the district court so that it may engage in the necessary fact-finding to ascertain whether Mr. Bulgarian received benefits that were undisclosed to appellants at the time of trial, and if so, whether Brady was violated as to each convicted count.

My opinion? Good decision. Since Brady was decided in 1963, the U.S. Supreme Court has required that prosecutors and police officers disclose evidence that impeaches the credibility of any state witness, including police officers. Examples of impeachment evidence include false testimony, misrepresentations made in court documents, false information in police reports and internal police disciplinary proceedings.

Unfortunately, that is not being done.  There is no uniform system compiling Brady data; each county’s prosecuting attorney has different methods for assembling Brady information and different perspectives on when disclosure is constitutionally required. Naturally, this creates problems for defense counsel seeking exculpatory information from prosecutors and law enforcement agencies. Fortunately, competent defense counsel has ways of overcoming these challenges, as demonstrated by the excellent representation given to the defendants in this case.

Protective Sweeps of Homes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2. Chamber’s Incriminating Statements Are Admissible.

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

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

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

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

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

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

The Court affirmed the jury verdict.

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

Holiday Drinking In The U.S.

Interesting article by Christopher Ingraham of the Washington Post discusses how data on total monthly alcohol sales in the United States carries a time-tested seasonal trend: the spikes in December of each year.

Clearly, the holidays are traditionally a time for boozing it up.

For example, the Department of Health and Human Services recently updated the official federal statistics on the percent of state residents ages 12 and older who drink at least once a month. Also, Ingraham’s article discusses how various direct and indirect measures of alcohol consumption, including breathalyzer data, Web searches for hangover relief and alcohol-related traffic deaths all suggest that peak American drinking happens between Thanksgiving and New Year’s.

THE NORTHEAST

New England is home to the nation’s heaviest drinkers – New Hampshire, where about 64 percent of residents age of 12 or older drink monthly, is tops in the country. Vermont, Maine and Connecticut also come in at drinking rates above 60 percent. Hard-drinking cheeseheads in Wisconsin see to it that their home is the only Midwestern state in the top tier of American drinkers.

THE NORTHWEST

Ingraham discusses how the next tier of heavy drinking states are all in the northern part of the country. Some researchers posit that there may be a relationship between heavy drinking and latitude. At the country level, alcohol consumption tends to increase the farther you get away from the equator. This could be a function of the potential for boredom and depression during winter months when the nights are long and the days are short. For a prime example of this, see recent stories involving alcohol and misconduct among people who live in Antarctica.

RELIGIOUS STATES

Ingraham discusses other cultural factors affect some States’ attitudes about drinking. On the map above, take a look at Utah and particularly Idaho. They’re in the bottom tier of the states for drinking frequency. Utah, where only 31 percent of adults drink in a given month, comes in dead last. This is almost certainly because of the large Mormon populations in those states — 58 percent of Utahans are Mormon, as are 24 percent of people in Idaho. Mormonism generally prohibits the use of alcohol and other drugs.

There’s likely a similar religious influence in places Alabama, Mississippi and the other Southern states where drinking is low. Those states have large evangelical Christian populations, many of whom are abstainers.

HOLIDAY DUI PATROLS IN WASHINGTON STATE

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Coincidentally, the Washington State Patrol announced its increased Holiday DUI Patrol campaign of “Drive Sober Or Get Pulled Over.” Our State Troopers are extremely proactive in reaching their Target Zero goal of zero traffic fatalities by 2030.

Also, our local police and sheriff’s offices are working very hard responding to incidents of domestic violence, burglary, assault and other criminal incidents associated with holiday celebrations.

SEEK COMPETENT LEGAL REPRESENTATION IF YOU FACE CRIMINAL CHARGES THIS HOLIDAY SEASON.

For many, the holiday season is a joyous time when family and friends get together and celebrate. Naturally, our holiday merriment could involve the libations of alcohol and/or legal (and illegal) drugs.

We must enjoy the holidays safely and responsibly. Unfortunately, incidents of domestic violence, DUI, and other criminal behaviors – intentional or otherwise – can dampen our holiday festivities.

It’s never desirable to face criminal charges which could negatively affect your life for years to come. However, if you, friends or family find themselves in situations involving law enforcement, jail and/or criminal charges then contact the Law Office of Alexander Ransom as soon as possible.  I staunchly defends my clients’ constitutional rights to a fair trial, just proceedings and the suppression of evidence involving unlawful searches, seizures and self-incrimination. My practice involves saving people’s careers and reuniting families by seeking reductions and dismissals of criminal charges when appropriate.

Happy holidays!

-Alex Ransom, Esq.

State v. Ortuno-Perez: “Other Suspect” Evidence

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In State v. Ortuno-Perez, the WA Court of Appeals held that a murder defendant was wrongfully prohibited from introducing evidence that another person, who was armed at the murder scene, actually committed the murder.

In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.

The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, the defendant Santiago Ortuno-Perez and Austin Agnish—each of whom was armed with a handgun at the time.

On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish. Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.

Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State’s witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter.

However, the trial court denied Ortuno-Perez’s request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.

Four days later, Ortuno-Perez’s counsel filed a detailed offer of proof regarding the “other suspect” evidence that the defense would have introduced but for the trial court’s adverse ruling. Again, the trial court excluded the “other suspect” defense.

On the 10th day of testimony, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court’s “other suspect” rulings. The judge denied the motion for mistrial.

The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement. Ortuno-Perez appealed.

Ultimately, the WA Court of Appeals reversed  Ortuno-Perez’s conviction and ordered a new trial.

“OTHER SUSPECT” EVIDENCE.

The court reasoned that Washington’s “other suspect” evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value. Furthermore, the court reasoned that State v. Franklin holds that such evidence should be admitted if there is an adequate nexus between the alleged other suspect and the crime. Thus, the threshold analysis for “other suspect” evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence’s materiality and probative value for whether the evidence has a logical connection to the crime.

THE SIXTH AMENDMENT.

The Court further reasoned that the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant a meaningful opportunity to present a defense. This right, however, is not absolute. It may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible. As with all evidence, the proponent bears the burden of establishing the admissibility of “other suspect” evidence.

Because the premise underlying the introduction of “other suspect” evidence is to show that someone other than the defendant committed the charged crime, the standard for admission is whether the proffered evidence tends to indicate a reasonable doubt as to the defendant’s guilt. Evidence is relevant when it is both material—the fact to be proved is of consequence in the context of the other facts and the applicable substantive law — and probative — the evidence has a tendency to prove or disprove a fact.

SUPPRESSING “OTHER SUSPECT” EVIDENCE VIOLATED ORTUNO-PEREZ’S RIGHTS UNDER THE SIXTH AMENDMENT.

Here, the Court of Appeals agreed that the “other suspect” evidence that Ortuno-Perez proffered actually supported a reasonable doubt as to his guilt. Prior to trial, defense counsel sought permission to present evidence to the jury that Agnish, not Ortuno-Perez, killed Castro. In his briefing, Ortuno-Perez’s counsel indicated that it planned to present evidence that Agnish (1) was using prescription drugs at the time that Castro was shot, potentially altering his perception of the shooting and his memory thereof, (2) was armed with a handgun and in close proximity to Castro at the time of the shooting, (3) lied about having access to guns other than the one he admitted carrying at the time of the shooting, and (4) was a member of a gang and had expressed a belief that Castro belonged to a rival gang.

However, the Court of Appeals reasoned that the trial court abused its discretion by improperly excluding the proffered evidence. It said the evidence proffered by Ortuno-Perez relating to Agnish’s potential culpability was of a type that tended to logically connect Agnish to Castro’s murder:

“If credited by the jury, it would establish Agnish’s motive (a gang clash), his opportunity (he was present at the murder scene and in close proximity to Castro at the instant of the shooting), and his means (he was armed with a handgun). Thus, the evidence proffered was plainly relevant to the question of the identity of Castro’s murderer and was of a type that, if credited by the jury, would support a reasonable doubt as to Ortuno-Perez’s guilt.”

The Court of Appeals said that as a result of the trial court’s erroneous rulings , Ortuno-Perez was unfairly prejudiced in two major respects: (1) his ability to confront the witnesses against him was compromised by the rulings preventing him from exploring the potential biases of witnesses who may have been covering for Agnish out of either affinity or fear; and (2) his ability to argue in closing argument that logical inferences from the evidence actually admitted during trial supported a reasonable doubt as to his guilt was compromised by rulings precluding him from suggesting to the jury that anyone other than Ortuno-Perez himself had shot Castro.

The trial court’s erroneous rulings were not harmless. The “other suspect” evidence which the trial judge excluded could have caused a reasonable juror to doubt whether Ortuno-Perez was guilty as charged. Consequently, the Court of Appeals reversed the conviction and remanded for a new trial.

My opinion? Good decision. Under the Sixth Amendment, allowing attorneys to argue inferences from the evidence is a rudimentary aspect of this right.  Defense Counsel must be afforded the utmost freedom in the argument of the case and some latitude in the discussion of their causes before the jury.

Premeditated Murder Unproved.

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In State v. Hummel, the WA Court of Appeals Division I reversed a defendant’s conviction for first degree murder due to insufficient evidence of premeditation. It reasoned that proof of a strong motive to kill the victim does not, in itself, establish planning or the method of killing. Because the prosecutor did not request the court instruct the jury on murder in the second degree, the Court dismissed the case with prejudice.

The facts are interesting. Two juries in Whatcom County Superior Court found defendant Bruce Allen Hummel guilty of killing his wife, Alice Hummel. Both were retired Alaska teachers. Their two daughters lived on Alabama Hill in Bellingham in the early 1990s. This case was heavily covered in the Bellingham Herald.

The story begins with Mr. Hummel informing their children that their mother decided to move away and leave the family. Over the years, the girls continued to receive letters and gifts in the mail from Alice. Bruce Hummel told the girls Alice had earned a promotion and moved to Texas.

In 2001, the girls reported their mother missing in 2001. They recalled the strange circumstances of their mom’s disappearance. Bellingham police detectives found only traces of their mother’s existence: a current driver’s license from Alaska, monthly disability deposits from a teachers’ retirement system in Alaska, and withdrawals from a bank account in Alaska. Once detectives confronted him with $340,000 in disability checks he had collected under Alice’s name, Mr. Hummel admitted Mrs. Hummel had been dead for years. He claimed she committed suicide by cutting her wrists. Her body was never found.

Hummel was convicted of 12 counts of wire fraud in federal court, for the theft of the disability checks, then charged with murder in the first degree in Whatcom County.

At his first trial in August 2009, Hummel of first-degree murder in August 2009. He appealed as he started serving a sentence of 45 years in prison. The Washington State Court of Appeals found, in 2012, that that there was sufficient evidence to prove the case, but that Hummel’s rights were violated during voir dire, when potential jurors were questioned in private about sensitive issues in their personal lives. (Many other similar, serious cases have been overturned in Washington for not undertaking what is called the Bone-Club analysis, essentially a checklist to avoid violating a defendant’s right to a public trial).

At his second trial in May 2014, Hummel was again convicted of first-degree murder. This time he was sentenced to 26 years in prison, a shorter term because the Court of Appeals found his federal crimes should not count toward his criminal history because there was no comparable state law to federal wire fraud in 1990.

Hummel appealed with assistance from the Washington Appellate Project. Hummel argued there was insufficient evidence to support the conviction because the State did not prove beyond a reasonable doubt the essential element of premeditation.
The Court of Appeals agreed. It reasoned that no trier of fact could have found beyond a reasonable doubt that Hummel killed Alice with premeditated intent to commit murder in the first degree. Reversal for insufficient evidence is “equivalent to an acquittal” and bars retrial for the same offense.  Also, the Court reasoned that the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in prior proceedings. Because the prosecutor did not request the court instruct the jury on the lesser included crime of murder in the second degree, the Court of Appeals held it could not remand to enter a judgment on murder in the second degree.
The Court of Appeals reversed and vacate the conviction for premeditated murder in the first degree, and remand the case back to Superior Court to dismiss the conviction with prejudice.
My opinion? This isn’t over. I’m certain the State shall appeal to the WA Supreme Court.

Corpus Delicti & Murder Confessions

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In State v. Young, the WA Court of Appeals Division II decided the defendant’s confession to murder was properly admitted because the State presented ample independent evidence of (1) the fact of death, and (2) a causal connection between the death and a criminal act.

On the morning of July 4, 2013, John Young entered the Desert Food Mart in Benton City and asked the cashier to call 911 because he had witnessed a shooting of a man named Jacob. Police were summoned. As the investigation proceeded, Mr. Young became a suspect. He was brought in for questioning, and consented to audio and video recording of an interview.

During the interview, an officer read Mr. Young Miranda warnings and obtained his agreement that he understood he was now a suspect and any statements he made could be used against him. Mr. Young then confessed that Jacob was involved in a drug deal gone wrong. With the assistance of an accomplice named Joshua Hunt,  Mr. Young admitted he fired one shot into Jacob’s head near the temple-cheek region, killing him.

Mr. Young also confessed that he and Mr. Hunt disposed of their shoes and gun by putting the items into a backpack and throwing the backpack into a river. Later, police recovered the shoes and gun.  The shoes matched footprints and shoe patterns that had been found in the sand near Jacob’s body. The Washington State Patrol Crime Laboratory determined that all of the bullets recovered from the crime scene had been fired from the Charter pistol found in the backpack.

Mr. Young was charged with first degree murder.

During a 3.5 hearing, Young’s attorney lawyer stipulated to the admission of the videotaped interview, telling the court:

“We believe it’s in our interests to actually stipulate to the 3.5 hearing, and I’ve discussed that with Mr. Young, and I know the Court will make its own inquiries, but he knows and understands he has a right to that hearing, but we believe it’s in our benefit and strategic interest to proceed with the stipulation.”

The court questioned Mr. Young, who stated he understood he had a right to a hearing on the admissibility of the statements but was agreeing instead that all of his statements were admissible.

During trial, Mr. Young’s videotaped confession was played for the jury. At the conclusion of the evidence, the jury returned a guilty verdict. Mr. Young appeals.

Mr. Young argued his defense counsel provided ineffective assistance of counsel by stipulating to the admission of Mr. Young’s confession when there was no independent evidence apart from his confession, under the corpus delecti rule, sufficient to establish all the elements of first degree murder.

For those who don’t know, corpus delicti is a term from Western jurisprudence referring to the principle that a crime must be proved to have occurred before a person can be convicted of committing that crime.

The Court of Appeals rejected Young’s arguments. It reasoned that in a homicide case, the corpus delecti generally consists of two elements: (1) the fact of death, and (2) a causal connection between the death and a criminal act. It can be proved by direct or circumstantial evidence, which need not be enough to support a conviction or send the case to the jury. In assessing whether there is sufficient evidence of the corpus delicti independent of a defendant’s statements, the Court assumes the truth of the State’s evidence and all reasonable inferences from it in a light most favorable to the State.

Here, the corpus of the crime of murder was amply established by (1) a dead person; (2) multiple gunshot wounds that established a casual connection with a criminal act; (3) testimony eliminating the possibility of self-inflicted wounds; and (4) the recovery of the weapon miles away from the dead body.

Furthermore, the Court reasoned that the State is not required to present independent evidence of the defendant’s mental state. It reasoned the State is not required to present independent evidence sufficient to demonstrate anything other than the fact of death and a causal connection between the death and a criminal act.

Finally, the Court rejected Mr. Young’s claims of ineffective assistance of counsel:

“It appears from his closing argument that Mr. Young’s trial lawyer believed his client’s videotaped interview would advance that argument. Mr. Young fails to demonstrate that his trial lawyer lacked a strategic reason for the stipulation.”

With that, the Court of Appeals confirmed Mr. Young’s conviction.

My opinion? This case represents a fairly straightforward analysis of the corpus delicti defense. I’ve had great success when it applies, and have managed to get many criminal charges reduced or dismissed under this defense. However, the corpus delicti defense is extremely narrow. Aside from the defendant’s confession, there must be virtually NO independent evidence connecting the defendant to the crime. Here, other evidence existed which implicated Mr. Young and the defense was found inapplicable.

Recorded Arguments & Privacy.

Image result for privacy and cell phones

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

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

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

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

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

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

1. DID A CONVERSATION TAKE PLACE?

Amidst screaming from Sheryl, the following communications took place:

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

Sheryl: “Get away.”

John: “No way. I will kill you.”

Sheryl: “I know.”

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

Sheryl: “No. Leave me alone.”

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

2. WAS THE CONVERSATION PRIVATE?

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

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

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

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

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

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

“Joining” Multiple Offenses

Image result for rap sheet

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

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

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

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

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

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

Also, CrR 4.3 says the following:

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

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

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

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

The Court applied the Cotten factors.

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

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

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

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

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

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

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

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

My opinion?

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

Threatening Note = Robbery

 

In  State v. Farnsworth, the WA Supreme Court decided a defendant’s handwritten note demanding money from a bank teller contained threats sufficient enough to support a conviction for robbery.

On October 15,2009, defendants Charles Farnsworth and James McFarland were suffering heroin withdrawals and had no money to purchase more. The pair made a plan to “rob” a bank. The plan was for McFarland to wait outside in the car while Farnsworth entered a bank wearing a wig and sunglasses as a disguise, and retrieve money. Farnsworth would present a note to the teller, which read, “No die packs, no tracking devices, put the money in the bag.”

They executed the plan. The bank teller handed Farnsworth about $300 in small bills, and McFarland left. Farnsworth and McFarland drove away, but they were pulled over and arrested a few blocks from the bank. Both were charged with Robbery in the First Degree pursuant to RCW 9A.56.200(1 )(b) (robbery committed in a financial institution).

Both defendants had long criminal histories. Farnsworth faced the possibility of a life sentence under the Persistent Offender Accountability Act (POAA) of the Sentencing Reform Act of 1981 if convicted of this robbery, as he was previously convicted of a 2004 Robbery and a 1984 Vehicular Homicide in California. The POAA requires a life sentence when a repeat offender commits a third felony that is classified as a “most serious offense” (often referred to as a “third strike”).

Farnsworth went to trial and was found guilty. The trial court sentenced him to life in prison without the possibility of release. Farnsworth appealed, arguing that the evidence was insufficient to support robbery because (1) there was no threat of force and (2) he agreed to aid only a theft, not a robbery. The case ended up the WA Supreme Court.

The court upheld Farnsworth’s conviction.  It reasoned that sufficient evidence supports an implied threat of force:

“Although the note did not convey an explicitly threatening message, we believe it was laden with inherent intimidation. When a person demands money at a bank, with no explanation or indication of lawful entitlement to money, it can imply a threat of force because without such a threat, the teller would have no incentive to comply. An ordinary bank teller could reasonably infer an implied threat of harm under these circumstances.”

Because of this implicit threat, reasoned the Court, banks have security guards and distinctive policies in place to prevent harm flowing from precisely these types of encounters.

The Court also reasoned that the defendants were well aware that banks generally instructed their employees to react to such notes as if they contained an explicit threat. “In fact, the pair relied on that knowledge and fear to commit this crime,” said  the Court.

Finally, the Court reasoned that no errors deprived Farnsworth of a fair trial. With that, the Court affirmed Farnsworth’s conviction for first degree robbery.

My opinion? It’s generally difficult to see how threatening notes create a basis to support a prosecution and conviction for Robbery, which can be a Class or a Class B violent felony “strike” offense. Still, a threatening note passed to a bank teller in a financial institution must be taken seriously. This is, in fact, how most bank robberies happen.

Note to self: DON’T PASS THREATENING NOTES.