Category Archives: Washington Supreme Court

State v. Armstrong: Prosecutor Not Obligated to Bring Video Evidence

Image result for ampm video crime scene video

Some Clients are concerned why can’t make the Prosecution obtain video surveillance evidence from crime scenes. This recent case explains why.

In State v. Armstrong, the WA Supreme Court held that the Prosecutor’s failure to obtain a copy of the AM/PM store’s surveillance video prior to the store’s destruction of the video pursuant to the store’s policy, did not violate the defendant’s due process rights.

FACTS & BACKGROUND

A no-contact order existed prohibiting Defendant Dennis Armstrong from contacting his former partner, Nadia Karavan. Nonetheless, on April 20, 2014, they agreed to meet at a bus stop in violation of the No-Contact Order. As the two talked, Armstrong became angry. He yelled and hit the wall of the bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist.

After a brief struggle, Karavan ran to a nearby AM/PM gas station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the two exchanged words. Armstrong followed Karavan around the store for several minutes, and Karavan asked Hawkins to call the police several times. When Hawkins finally called the police, Armstrong left the store.

Officers responded to the 911 call. Officer Martin noticed that Karavan had a slightly swollen, red abrasion on the side of her face.

Armstrong denied spending time inside the AM/PM. In response, the officers told Armstrong that surveillance video from the AM/PM would show what really happened. The officers repeatedly emphasized the video and told Armstrong that he should “tell the truth” because they had the “whole thing on video.”

The State charged Armstrong with a domestic violence felony violation of a court order.

Before trial and again during trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel failed to give him the surveillance video as he requested. The prosecutor told the court that the State had never possessed the video. The court denied Armstrong’s motions.

At trial, Hawkins (the AM/PM employee) testified that there were about 16 cameras around the store: a few of which covered the gas pumps and one that may have shown a slight, low view shot of the bus stop. Although Hawkins testified that police had requested surveillance video from AM/PM in the past, no officer requested footage from the night of this incident. Hawkins had previously reviewed the video from that night and testified that it showed what he described in his testimony, but per AM/PM policy, the video had since been destroyed.

At trial, the officers gave various reasons why they never collected the video. Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility of someone else at the scene to investigate the video. Officer Rodriguez testified that he never viewed the video. He simply followed Officer Elliot’s lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation on the case, testified that he did not investigate any video from the AM/PM because he did not know such video existed.

The jury returned a general guilty verdict despite the lack of surveillance video evidence.

On appeal – and with other arguments, Armstrong claimed that the police violated his right to due process because they failed to collect video surveillance from the AM/PM after using that video as a tool when interviewing Armstrong at the scene.

ANALYSIS & CONCLUSIONS.

Ultimately, the Court held that Armstrong failed to show that the police acted in bad faith when they did not collect video surveillance that was only potentially useful evidence.

The Court reasoned that under the Fourteenth Amendment to the federal constitution, criminal prosecutions must conform with prevailing notions of fundamental fairness, and criminal defendants must have a meaningful opportunity to present a complete defense. Consequently, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.

The court also reasoned that although the State is required to preserve all potentially material and favorable evidence, this rule does not require police to search for exculpatory evidence. And in order to be material exculpatory evidence – that is, evidence which has value to the defense of which can alter or shift a fact-finder’s decision on guilt or innocence – the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Finally, the court reasoned that the police’s failure to preserve “potentially useful evidence” was not a denial of due process unless the suspect can show bad faith by the State. The presence or absence of bad faith turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Also, acting in compliance with its established policy regarding the evidence at issue is determinative of the State’s good faith.

“Armstrong asserts that the video surveillance was potentially useful evidence,” said the Court. “Therefore, he must show that the police acted in bad faith.” According to Armstrong, the police acted in bad faith because they told him during the interview that they were going to collect the video but they never actually collected it. Armstrong describes this as the police acting with an “extreme cavalier attitude” toward preserving potentially useful evidence. The Court further reasoned that beyond this failure to collect the video, Armstrong offers no evidence of bad faith, such as improper motive.

“Armstrong has failed to show that the police acted in bad faith when they failed to collect the surveillance video from the AM/PM. The testimony of the officers indicates that the video went uncollected due to mere oversight. Armstrong has presented no evidence that the police had an improper motive. At most, Armstrong has shown that the investigation was incomplete or perhaps negligently conducted, but that is not enough to show bad faith.”

With that, the Court upheld his conviction.

My opinion? I understand the Court’s opinion insofar as the Prosecution should not be burdened with providing exculpatory evidence, especially if that evidence is unimportant – or not material – to the larger issues of guilt.

However, I would object to the AM/PM employee  discussing the  video as facts that are not admitted into evidence. Under this objection when the attorney claims that “the question assumes facts not in evidence,” what he is really saying is that the facts that are being presented to the witness are presumably not yet in evidence and therefore, how can this witness properly answer the question if those facts have not been put before this jury? These kinds of questions

Diminished Capacity Defense Denied

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In a deeply divided decision of 5-4, = the WA Supreme Court held in State v. Clark that the defendant’s Diminished Capacity defense was properly excluded at trial, even though lay witnesses could testify that the defendant was “slow,” participated in special education, and received Social Security disability benefits.

The defendant Anthony Clark killed the victim, D.D., with a single gunshot to the back of his head. D.D.’s body was found in a garbage can behind the triplex apartment building where Clark lived. There were no eyewitnesses to the shooting other than Clark himself. The State theorized that Clark killed D.D. with premeditation in order to steal D.D.’s gun and cocaine. Clark contended the shooting was an accident. The primary disputed issue was thus Clark’s level of intent.

CHARGES

Clark was charged with premeditated first degree murder, first degree felony murder, first degree robbery, unlawful possession of a controlled substance with intent to deliver, and second degree unlawful possession of a firearm. Clark pleaded not guilty on all counts.

PROCEDURAL HISTORY

Before trial, the defense moved to suppress statements Clark made to police after the shooting, contending that he did not validly waive his Miranda rights before speaking to police. To support its motion, the defense offered an expert evaluation from a doctor. At the suppression hearing, Dr. Oneal testified that Clark scored in the bottom first to third percentile in standardized intelligence tests. The court found that Dr. Oneal was a credible witness but denied Clark’s motion to suppress.

The State then moved to exclude testimony about Clark’s “intellectual deficits” for trial purposes. However, Clark argued that the doctor’s testimony was admissible for three purposes: (1) to help the jury understand Clark’s affect during testimony, (2) to explain why Clark does not work, and (3) to contest the State’s evidence of intent.

The court granted the State’s motion in part and excluded the doctor’s expert testimony because, in light of the fact that Clark specifically disavowed any intention to argue diminished capacity, expert testimony on Clark’s intellectual deficits would be irrelevant and confusing to the jury. It did, however, allow for relevant observation testimony bearing on Clark’s intellectual deficits, including his participation in special education, his receipt of Social Security disability benefits, and “that people who knew him considered him slow or tended to discount his testimony.”

JURY TRIAL

At trial, the defense renewed its request to admit the doctor’s expert testimony; arguing that the testimony was necessary to rebut the State’s evidence of intent and to explain Clark’s affect when he testified. Nevertheless, the defense consistently maintained that it was not asserting diminished capacity. The court adhered to its ruling excluding the doctor’s testimony and reminded counsel that relevant observation testimony by lay witnesses was admissible.

The defense brought testimony that Clark had been in special education, had an individualized education plan, and received Social Security disability benefits. It relied on this evidence in its closing argument, emphasizing that Clark was “not your average 20 year old” and arguing that in light of Clark’s actual intellectual abilities, the State had not proved intent to commit murder.

Clark was convicted of premeditated first degree murder as charged, as well as all the other charged counts.

ISSUES ON APPEAL

  1. Did the trial court properly exclude expert testimony regarding Clark’s intellectual deficits?
  2. Was trial counsel ineffective for failing to object when the State informed prospective jurors that it was not seeking the death penalty?
  3. Did cumulative error deprive Clark of his right to a fair trial?

ANALYSIS

1. The Court Properly Excluded Expert Testimony of Diminished Capacity Evidence.

The Court gave background that under ER 702, expert testimony is admissible “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” It also reasoned that diminished capacity “allows a defendant to undermine a specific element of the offense, a culpable mental state, by showing that a given mental disorder had a specific effect by which his ability to entertain that mental state was diminished.” Also, the intent to assert diminished capacity must be declared before trial. Pretrial disclosure is required because when asserting diminished capacity, the defense must obtain a corroborating expert opinion and disclose that evidence to the prosecution pretrial, giving the State a reasonable opportunity to decide whether to obtain its own evaluation depending on the strength of the defense’s showing,” citing CrR 4.7(b).

Ultimately, the Court rejected Clark’s arguments that his doctor’s expert testimony should have been admitted for the purpose of rebutting the State’s evidence of intent.

“However, expert opinion testimony that a defendant has a mental disorder that impaired the defendant’s ability to form a culpable mental state is, by definition, evidence of diminished capacity. And where, as here, the defense does not plead diminished capacity, such testimony is properly excluded.”

Additionally, the Court rejected Clark’s arguments that his doctor’s testimony should have been admitted for the purpose of explaining Clark’s unusually flat affect while testifying:

“The jury had the ability to evaluate Clark’s affect to the same extent it had the ability to evaluate the affect of every testifying witness, and Clark has not shown that Dr. Oneal’s expert testimony would have been helpful for that purpose.”

2. Defense Counsel Was Not Ineffective for Failing to Object When the State Informed Prospective Jurors It Was Not Seeking the Death Penalty.

The Court gave background that in order to prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance was “deficient,” and that, “but for counsel’s deficient performance, there is a ‘reasonable probability’ that the outcome would have been different.”

Here, the Court reasoned there was no indication that the jury disregarded its instructions or paid less attention to the evidence presented throughout Clark’s trial because it was told that the death penalty was not at issue.  Additionally, there was also no reason to believe that a contemporaneous objection by defense counsel would have reduced any potential for prejudice more than the court’s proper, written instructions did. “We thus hold that Clark has not carried his burden of showing prejudice and therefore has not established ineffective assistance of counsel.”

3. Cumulative Error Did Not Deprive Clark of His Right to a Fair Trial.

The Court reasoned Clark does not show any error, so the cumulative error doctrine does not apply.

CONCLUSION.

The Court concluded that Clark’s defense consisted of diminished capacity evidence. With that, the trial court properly excluded expert testimony from Clark’s doctor because Clark did not assert or plead diminished capacity or show that his doctor’s testimony was otherwise relevant. Moreover, the court properly allowed relevant observation testimony, which the defense relied on in its attempt to rebut the State’s evidence of intent. The Court affirmed his conviction.

THE DISSENT.

The dissenting judges reasoned that the trial court admitted certain lay observation testimony supporting the defense, but excluded the more neutral and more persuasive medical expert testimony supporting the same defense theory.  It also reasoned that the majority judges wrongfully equated all expert testimony about intellectual deficits with a diminished capacity defense. Additionally, the dissenting judges reasoned that by excluding defense evidence that could rebut the State’s evidence of intent, the trial court violated Clark’s constitutional right to present a defense. Finally, the dissenters reasoned that the exclusion of expert testimony on Clark’s mild mental retardation was not harmless error:

“To rebut the State’s evidence that he was a cold, calculated killer, Clark offered lay and expert testimony about how he was slow and did not process information the way other people his age did. But the trial court excluded most of it. It barred all testimony from Dr. Oneal about Clark’s substantial intellectual deficits. 6 Dr. Oneal would have testified, based on his personal testing and evaluation of Clark, that Clark was born prematurely and with significant developmental delays, was highly suggestible and therefore prone to change his story when pressured, and had a very low IQ score indicating that he had extremely poor perceptional reasoning, working memory, and verbal comprehension skills compared to others his age.”

With that, the dissenting judges held that the trial court improperly excluded evidence of Clark’s intellectual deficits in violation of the Evidence Rules and Clark’s constitutional right to present a defense; and that this error was not harmless.

My opinion? Diminished Capacity is a worthwhile – and difficult – defense to bring forward. Prosecutors consistently try to preclude defense counsel from bringing the defense. Here, it’s too difficult to determine why defense counsel did not assert the defense from the beginning. We’ll never know.

Unfortunately for Mr. Clark, it the majority court believed Mr. Clark did not properly assert the defense. Instead, it allowed Clark to get some evidence of his mental deficits through law witnesses. This is lawful, albeit not enough. A defendant can assert a roundabout defense of diminished capacity through law witness observations. What’s problematic, however, is that law witnesses won’t bring the requisite level of insight that experts bring.

Interesting opinion.

 

Promoting Prostitution

Image result for prostitution

In State v. Barbee, the WA Supreme Court held that a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved.

Defendant Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee “supervised” during 2010 were SE, BK, and CW.

S.E.

SE met Mr. Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work “the track” (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She was expected to make $1,000 a day or stay up at night until she met that quota.

All of her earnings went to Barbee, who required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in “escorting.” During 2010, two of the women she recruited on Barbee’s behalf were two 18-year-olds, BK and CW.

B.K.

BK soon began working as a prostitute for Barbee, initially working out of a motel room and later moving to “the track.”  After BK was arrested and then released from jail, she went to her parents’ house, intending to stop working for Barbee. A few months later, Barbee texted BK and convinced her to come to his apartment in Seattle. BK soon began living in the apartment and worldng for Barbee again. She testified at trial that Barbee took the keys to her car and refused to return them, would not allow her to leave the apartment during the day, and allowed her to go shopping or visit her daughter only if he accompanied her. At some point in late 2010, BK left and stopped working for Barbee permanently.

C.W.

Eighteen-year-old CW also worked for Barbee during 2010, but for a comparatively short time. She was living in Bellingham and working at a nursing home when SE began communicating with her via MySpace in early May. Excited about the idea of becoming more independent, CW packed her bags, borrowed a friend’s car, and moved to Seattle to meet SEat a Motel6 on Pacific Highway South. Once she arrived, CW was told that she would be worldng for Barbee as an escort, that all of her money would go to him, and that he would provide her with clothes, jewelry, and a place to live.

A few weeks later, CW became disillusioned and texted Barbee that she was quitting. She left and never had contact with Barbee again.

THE ARREST & THE VERDICT

That December, SE arranged online to meet a client for an out-call at the Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she went inside. The client she had arranged to meet turned out to be an undercover officer. When SE arrived and agreed to have sex with the detective, she was arrested. After a short car chase, police officers arrested Barbee as well.

The State charged Barbee with two counts of promoting sexual abuse of a minor (SE), one count of first degree promoting prostitution (BK), one count of second degree promoting prostitution (CW), one count of leading organized crime, two counts of first degree theft from the Social Security Administration, and one count of second degree theft from the Department of Social and Health Services (DSHS).

The jury found Barbee guilty on all counts, except that they found him guilty of the lesser included offense of second degree promoting prostitution of BK.

THE APPEAL

Barbee claims that the two counts of promoting prostitution of BK and CW constitute a single unit of prosecution, or that he committed a single “enterprise” of promoting prostitution that involved two prostitutes. On Appeal, he argues that his two convictions for promoting prostitution of”different women as part of the same enterprise over the same period of time” encompassed a single unit of prosecution in violation of the double jeopardy prohibition clauses of our federal and state constitutions.

THE ISSUE

The WA Supreme Court addressed whether Barbee’s two counts of second degree promoting prostitution constitute a single unit of prosecution. Here, it appears so.

THE CONCLUSION

The Court decided that yes, Barbee’s two counts of Second Degree Promoting Prostitution constituted two distinct units of prosecution.

THE COURT’S ANALYSIS OF “UNITS OF PROSECUTION”

The WA Supreme Court reasoned that Double Jeopardy is violated when a person is convicted multiple times for the same offense. When the convictions are under the same statute, the court must ask what ‘”unit of prosecution”‘ the legislature intended as the punishable act under the specific criminal statute.

The Court further reasoned that both constitutions protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. Thus, while a unit of prosecution inquiry is “one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent.”

Furthermore, the court reasoned that when engaging in statutory interpretation, its goal is to ascertain and carry out the intent of the legislature: “To determine legislative intent and thus define the proper unit of prosecution, we first look to the statute’s plain meaning. If the plain meaning of the statute is ambiguous, we may also determine legislative intent by reviewing legislative history.”

Once we have defined the proper unit of prosecution, we perform a factual analysis to ascertain whether the facts in a particular case reveal that more than one “unit” is present.

THE COURT’S REASONING ON “UNITS OF PROSECUTION” IN ‘PROMOTING PROSTITUTION’ CASES

The Court reasoned that the plain Language of the Promoting Prostitution statute unambiguously authorizes multiple convictions when an individual promotes prostitution of multiple people:

“While the ‘evil’ of promoting prostitution may be the same regardless of how many prostitutes are “promoted,” it does not follow that a person is ‘equally guilty’ whether he pimps one prostitute or several. Rather, in statutes that involve crimes against persons, that guilt compounds in magnitude depending on the number of lives that are affected.”

Ultimately, two “units” were clearly proper here: CW and BK are two distinct “persons” who were both exploited by Barbee.

CONCLUSION

In sum, the WA Supreme Court held that the legislature, by use of the language “a person,” unambiguously authorized a unit of prosecution for each person promoted. “When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.” Accordingly, the Court affirmed the Court of Appeals’ decision that Barbee’s convictions for promoting prostitution of BK and CW did not violate prohibitions on double jeopardy.

ACLU Proposes New Jury Selection Court Rule

Image result for race based peremptory strikes

The Washington Supreme Court is considering a new court rule which would effectively end racial bias in jury selection.

Proposed General Rule 36 (“GR 36”) is proposed by the American Civil Liberties Union (ACLU), and is meant to protect Washington jury trials from intentional or unintentional, unconscious, or institutional bias in the empanelment of juries.

BACKGROUND 

In State v. Saintcalle, the Washington State Supreme Court expressed concerns that the federal Batson v. Kentucky test fails to protect potential minority jurors from racial bias during jury selection; specifically, the Prosecutor’s use of peremptory challenges to strike them.

The ACLU believes, however, that Batson has failed to adequately protect potential jurors and the justice system from biased use of peremptories. In proposing its new rule, the ACLU deftly cites and relies upon State v. Saintcalle, a Washington State Supreme Court case which admits that Batson was failing to end racial discrimination in jury selection. The  Saintcalle Court recognized there was ample data demonstrating that racial bias in the jury selection process remained “rampant”:

“Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection.  In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”

Saintcalle, 178 Wn.2d at 36.

In addition to the WA Supreme Court’s Saintcalle, the ACLU also argues that legal scholars have also long noted Batson’s failure to effectively eradicate discrimination in peremptory challenges.

THE “OBJECTIVE-OBSERVER” STANDARD

The ACLU proposes that GR 36 addresses this problem by employing a test that utilizes an objective-observer standard.  Apparently, the trial court would invalidate a peremptory strike if an objective observer could find that race or ethnicity was a factor for a peremptory challenge.  GR 36 also gives trial courts the necessary latitude to protect the justice system from bias by granting courts the freedom to raise objections to a peremptory strike sua sponte.  It would also bring greater diversity to juries, so that juries in Washington are more representative of the communities they serve.[12]  The rule would also improve the appearance of fairness and promote the administration of justice.

My opinion? I hope GR 36 passes. The Washington State Supreme Court has the flexibility to “extend greater-than-federal Batson protections” through its rule-making authority. Also, other states have adopted court rules dealing with the Batson issue.

GR 36 preserves the use of peremptory challenges as part of the right to a jury trial while at the same time addressing racial bias in jury selection.  Thankfully, the rule also provides guidance to the judiciary and attorneys about how to apply the rule. By adopting this rule, Washington will ensure that its justice system is not improperly tainted by bias, protect Washingtonians from discrimination, ensure diversity in juries, and address systemic, institutional, and unintentional racism in jury selection.

Panhandling is Free Speech

Image result for police arrest panhandler

 In  City of Lakewood v. Willis, the WA Supreme Court held that a Lakewood Municipal Ordinance that prohibited begging near highways and intersections of major highways violated the First Amendment.
Mr. Willis was standing near an exit ramp from I-5 in Lakewood and holding a sign saying he was disabled and needed help.  An officer cited Mr. Willis for “Aggressive Begging,” a crime under Lakewood Municipal Code (LMC) 9A.04.020A.
At trial, the jury found Mr. Willis guilty. The municipal court sentenced him to 90 days in jail and a fine of $1,000, with 90 days and $750 suspended. The court also assessed $125 in costs. Mr. Willis appealed, raising several constitutional challenges to the statute.
On appeal, the WA Supreme Court reasoned that although the government can impose certain restrictions on speech in a public forum, such as reasonable time, place, and manner restrictions; it cannot impose restrictions based on content. Consequently, Willis may challenge the ordinance as facially overbroad regardless of his conduct. “Because both provisions impose a content-based speech restriction in a substantial number of traditional public forums, Willis’ facial challenge succeeds. Thus, his conviction must be reversed.”
My opinion? This is a great decision, and should be helpful to defense attorneys in other municipalities with ordinances that limit and outlaw panhandling.  Sure, aggressive panhandling from the homeless is annoying. However, it should not be criminalized. It wastes taxpayer money to incarcerate the homeless on these charges. Next thing you know, the Girl Scouts of America will be jailed for selling cookies at your grocery store.
Big congratulations to attorney David Ionnotti, who represented Mr. Willis.  The ACLU and Washington Defender Association filed one amicus brief in the case, and the Seattle/King County Coalition on Homelessness filed another.

“Stop & Frisk” of Friends

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

A “Missing Witness” Argument Cuts Both Ways.

Image result for when you point the finger, you have three pointing back

Fair warning folks, this is a post only trial attorneys can appreciate . . .

In State v. Goss, the WA Supreme Court held a defendant was properly barred from arguing that the jury could draw a negative inference from the fact the State had not offered a recording of a detective’s interview with the defendant.

Mr. Goss was charged with Goss was initially charged with one count of Child Molestation Second Degree on accusations that he sexually assaulted his former fiance’s granddaughter. Later, a charge of Attempted Child Molestation Third Degree was added.

The police interviewed Mr. Goss when the accusations first arose. The interview was recorded at the police station, and lasted 50 minutes.

Before trial, Goss moved to redact portions of the recorded interview relating to (1) pornography Goss’s home computer and (2) prior allegations of child molestation made against him. The State indicated that it did not plan to play the recording in its case in chief. The trial judge reserved ruling until and unless the recording was offered. Neither side moved to admit the recording during trial.

At closing argument, Goss was barred from arguing that the State failed to produce the video.

Goss was found guilty of the charges. He appealed. Among other arguments, he said the Prosecutor’s failure to admit the interview at trial was analogous to a party not offering an available witness. This is also called the “Missing Witness Doctrine, which is well-described in State v. Blair. ” Under the “missing witness” or “empty chair” doctrine it is a well-established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, he fails to do so, the jury may draw an inference that it would be unfavorable to him.

However, the WA Supreme Court rejected these arguments. It pointed out that Goss himself moved to redact portions of the recorded interview relating to prior allegations of child molestation made against Goss by his daughter. The Court also reasoned The detective who questioned Goss on the tape testified at trial. Consequently, Goss could have cross-examined the Officer on the witness and possibly got the recorded interview admitted, redacted or otherwise.  Coincidentally, ruled the Court, “Nothing in this record suggests the State’s decision not to play the tape was nefarious. Goss has not shown the trial court abused its discretion because the tape was analogous to a missing witness. ”

My opinion? It’s difficult to say the WA Supremes decided this wrong. I’ve won jury trials where the Prosecution has pointed the finger at Defense for failing to produce “missing witnesses.” Usually, these attacks from the State are rejected by courts because the State – and not the defense – carries the burden of proof. Asking the defendant to come up with more witnesses is a sly (and unlawful) way of shifting the burden to the defense.

The “Missing Witness” doctrine is rather funny in that it points the finger right back at the attorney who claims the other side failed to produce the “magic witness.”

WPIC 5.20 discusses the limited use of the “Missing Witness” defense/offense tactic. Basically, if a person who could have been a witness at the trial is not called to testify, jurors may be able to infer that the person’s testimony would have been unfavorable to a party in the case. Jurors may draw this inference only if they find that:

(1) The witness is within the control of, or peculiarly available to, that party;

(2) The issue on which the person could have testified is an issue of fundamental importance, rather than one that is trivial or insignificant;
(3) As a matter of reasonable probability, it appears naturally in the interest of that party to call the person as a witness;
(4) There is no satisfactory explanation of why the party did not call the person as a witness; and
(5) The inference is reasonable in light of all the circumstances.

The tactic is to be used sparingly, and with good reason: it points the finger right back at the accusing party! Here, that’s exactly what the WA Supreme Court decided.

Abandoned Cell Phone Searches

In State v. Samalia, the WA Supreme Court held that although cell phone information is protected by the Constitution, the defendant abandoned this privacy interest when he voluntarily left the cell phone in a stolen vehicle while fleeing from police.

Defendant Adrian Sutlej Samalia fled on foot from a stolen vehicle during a lawful traffic stop, leaving his cell phone behind in the vehicle. After Samalia successfully escaped, the police searched the cell phone without a warrant and made contact with one of the numbers stored in the cell phone. That contact led to Samalia’s identification as the owner of the phone and driver of the stolen vehicle.

On these facts, the State charged Samalia with Possession of a Stolen Vehicle. Samalia moved to suppress the cell phone evidence under CrR 3.6, arguing that the officers violated his constitutional rights when they seized and searched his cell phone with neither a warrant nor a valid exception to the warrant requirement.

The State responded that the warrantless search was valid under the abandonment doctrine. The trial court held that Samalia voluntarily abandoned any privacy interest that he had in the cell phone by leaving it in the stolen vehicle, which he also voluntarily abandoned, while fleeing from Office Yates. After denying Samalia’s suppression motion and subsequent motion for reconsideration, the trial court found Samalia guilty as charged in a bench trial.  Samalia appealed to Division III of the WA Court of Appeals. They upheld the trial court’s decision under the abandonment doctrine.

Ultimately, the WA Supreme Court decided the search was lawful and upheld Samalia’s conviction. It reasoned that article I, section 7 of Washington’s Constitution states that “no person shall be disturbed in his private affairs … without authority of law,” and although the WA Constitution embraces the privacy expectations protected by the Fourth Amendment to the United States Constitution – and in some cases, may provide greater protection than the Fourth Amendment – the search was nonetheless lawful under the abandonment doctrine.

ABANDONMENT DOCTRINE

The Court reasoned that the “abandonment doctrine,” a person loses normal privacy interests in their property upon abandoning it. The abandonment doctrine is not rooted in any obligation by law enforcement to find the owner of property. Basically, it allows law enforcement officers to retrieve and search voluntarily abandoned property without implicating an individual’s rights. The court reasoned that in this sense, voluntarily abandoned property is different from lost or mislaid property, in which the owner maintains a privacy interest in the property and the finder may have an obligation to seek out the owner to return the property.

Thus, when an individual flees from law enforcement and leaves a cell phone behind in a stolen vehicle, a trial court may find that the cell phone is no less abandoned than any other item that was also left in the stolen vehicle.

Here, the Court declined to find an exception to the abandonment doctrine for cell phones. Consequently, the WA Supreme Court decided the trial court properly found abandonment under these facts.

In conclusion, the WA Supreme Court affirmed Samalia’s conviction on the grounds that the information derived from the search of Samalia’s cell phone was properly admitted as evidence under the abandonment doctrine.

DISSENTING OPINION

Justice Yu authored the dissenting opinion, which was also signed by Justice Stephens and Justice Sheryl Gordon McCloud. In short, these dissenting justices all agreed that common law doctrines like the Abandonment Doctrine cannot be applied mechanically to new technology. Second, the abandonment doctrine applies to personal property generally and not digital technology. Third, digital cell phone data remains a private affair, even if the cell phone itself has been voluntarily abandoned.

“The people of Washington are entitled to hold safe from government intrusion the unprecedented wealth of personal information accessible through a cell phone, even if the phone itself has been voluntarily abandoned. If government officials discover a cell phone and want to search its digital data for evidence of criminal activity, they may seize and secure the cell phone to preserve any evidence it may contain, but they must obtain a warrant before searching its digital data. Because the police did not obtain a warrant here, the search was unlawful and its fruits should have been suppressed. I respectfully dissent.”

My opinion?

Last year, I discussed this case when the Court of Appeals decided it in my blog post titled, State v. Samalia: Search of Abandoned Cell Phone is Lawful. Again, I disagree with the court’s majority decision in this case. The trial court should have suppressed the cell phone search back in the beginning of this case. Under these circumstances, the abandonment doctrine is simply not the proper legal vehicle to permit a cell phone search. Using this doctrine leaps too far in the wrong direction. Kudos to the dissenting judges in this case. Although the decision was not deeply divided (6-3), the dissenters got it right. Officers need to get search warrants. Period.

My advice to the general public?

Never leave incriminating evidence on your cell phone. No pictures, videos, nothing. A lost phone could now be considered “abandoned” and searchable by authorities.

State v. Ashley: Prior Bad Acts of DV

In  State v. Ashley, the WA Supreme Court decided a trial court properly admitted evidence of the defendant’s prior acts of domestic violence against the victim. Here, defendant Baron Ashley was charged with Unlawful Imprisonment Domestic Violence (DV) for detaining his girlfriend Makayla Gamble in the bathroom without her consent.

Apparently, Ashley and the victim Makayla Gamble had a long-term DV relationship. Gamble testified that Ashley had physically abused her in the past. She explained that she had been in a relationship with Ashley for several years and that he had abused her multiple times during that relationship. In total, Gamble described four specific instances of abuse, including three instances when Gamble was pregnant. Gamble explained that she suffered bruises, black eyes, and a popped eardrum as a result of these attacks, but that she called the police only once and later retracted her complaint because she loved Ashley. Specifically, Gamble testified that these instances affected her decision to get into the bathroom when instructed.

The jury found Ashley guilty as charged.

On appeal, Ashley argued the trial court wrongfully admitted evidence of his prior misconduct under Evidence Rule (ER) 404(b). The Court of Appeals affirmed his conviction, and the WA Supreme Court granted review. ER 404(b) provides in full:

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, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. By its plain language, the rule absolutely prohibits certain types of evidence from being used “to prove the character of a person in order to show action in conformity therewith,” but allows that same evidence to be introduced for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

The Court  explained that ER 404(b) prohibits certain types of evidence from being
used “to prove the character of a person in order to show action in conformity
therewith,” but allows that same evidence to be introduced for any other purpose,
depending on its relevance and the balancing of its probative value and danger of
unfair prejudice. The Court also referred to its four-part test to determine if ER 404(b) evidence is admissible:

“To admit evidence of a person’s prior misconduct, the trial court must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be
introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.”

Here, Defendant Ashley argued that the State did not establish that the incidents of prior domestic violence even occurred. He also said that this evidence was irrelevant to Gamble’s credibility and to the elements of the crime, and that the prejudice of the prior bad acts dramatically outweighed any probative value of the evidence.

However, the WA Supreme Court rejected Ashley’s arguments.

The Court decided the Prosecution satisfied the first prong of the test: “The trial court heard undisputed testimony describing a series of instances of domestic violence by Ashley against Gamble and reviewed a 2004 police report. The trial court found Gamble’s testimony credible. Ashley presents no legal or factual argument for disturbing this finding; he simply disagrees with it.”

The Court also found the prosecution satisfied the second and third prong of the test:

“The State’s theory was that Ashley intimidated Gamble, forcing her to remain in the bathroom. The trial court found that the State demonstrated that Ashley’s history of domestic abuse against Gamble was highly probative of whether Ashley restrained Gamble using intimidation and fear based on this history of domestic abuse. Essentially, the trial court found-and the Court of Appeals agreed-that the domestic violence evidence was both material and relevant to Gamble’s lack of consent and to whether Ashley restrained Gamble by intimidation. We agree.”

Finally, the Court held the Prosecution satisfied the fourth prong of the test:

“Here, the trial court properly balanced these interests, concluding that Ashley’s long history of domestic violence toward Gamble was highly probative in assessing whether Ashley intimidated Gamble, such that she was restrained without her consent.”

In conclusion, the Court held that the trial court undertook the proper ER 404(b) analysis, the domestic violence evidence presented was highly probative of the victim’s lack of consent, and the State met its burden of demonstrating the evidence’s overriding probative value to establish a necessary element of the crime. However, the Court also held that the trial court committed harmless error by instructing the jurors that they could consider the evidence for the purpose of bolstering Gamble’s credibility. Ashley’s conviction was affirmed.

For more information on Domestic Violence issues please review my Legal Guide titled “Defending Against Domestic Violence Charges.” There, I provide links to my analysis of Washington cases discussing domestic violence. Also, please go the search engine of my Blog if you have specific queries about these issues.

Finally, I am available for free consultations if you face criminal charges involving domestic violence.

Good luck!

Utah v. Strieff: High Court Upholds Unlawful Search

In Utah v. Strieff, the U.S. Supreme Court held in a 5-3 vote that an illegal police stop and resulting drug arrest did not ultimately violate the Fourth Amendment because the officer later discovered the defendant had an outstanding traffic warrant.

The case began when a police officer stopped Edward Strieff on the street and ran his identification. The state of Utah concedes that this was an illegal police stop. However, when the Officer ran Strieff’s identification, it was discovered that Strieff had an outstanding traffic warrant. The officer then arrested him, searched him, and discovered drugs in his pockets. Strieff argued that the drugs should have been inadmissible under the Fourth Amendment because they are the fruits of an illegal search.

In an opinion authored by Justice Clarence Thomas, the U.S. Supreme Court disagreed with Mr. Strieff, ruled for the State, and found there was no flagrant police misconduct:

“The evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”

Furthermore, the Court also noted that although the Exclusionary Rule prohibits the admissibility of evidence which is illegally seized in violation of people’s Constitutional rights, there are several exceptions to the rule. One exception is the Attenuation Doctrine, which admits typically inadmissible evidence when the connection between unconstitutional police conduct and the evidence is sufficiently remote or has been interrupted by some intervening circumstance.

The Court reasoned that the Attenuation Doctrine therefore applies here, where the intervening circumstance is the discovery of a valid, pre-existing, and untainted arrest warrant: “Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest.” Justice Thomas’s majority opinion was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, and Samuel Alito.

Writing in dissent, Justice Sonia Sotomayor blasted the majority for excusing police misconduct and undermining the Fourth Amendment:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic war rants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.”

“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

My opinion? I agree with Sotomayor’s dissent. Utah v. Strieff is a terrible blow to every American’s Fourth Amendment rights to be free from unlawful and intrusive government searches. Period.

That aside, will Utah v. Strieff negatively impact the constitutional rights of citizens in Washington State? Probably not. We already have time-tested precedents like State v. Doughty, State v. Afana and State v. Winterstein. All of these WA Supreme Court cases – and more – are recent opinions that are factually similar to Utah v. Streiff. Fortunately, these cases have already ruled against police officers violating people’s Constitutional rights against illegal search and seizure.

As a colleague of mine said, “The rest of the country may be SOL, but Utah v. Strieff should not survive here in WA State.”

Let’s keep our fingers crossed.