Category Archives: Washington Supreme Court

WA Supreme Court Changes Race Bias Jury Selection Test

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In State v. Jefferson, the WA Supreme Court modified the the third step of a Batson challenge to a peremptory strike of a juror in Washington. At the final step, the trial court must ask whether an objective observer could view race or ethnicity as a factor in the use of peremptory strike. If so, then the strike must be denied and the challenge to that strike must be accepted.

BACKGROUND FACTS

On February 14, 2013, Jefferson was involved in a fight over a pair of designer sunglasses. The fight ended with the shooting of Rosendo Robinson. Jefferson was subsequently charged with attempted murder in the first degree, assault in the first degree, and unlawful possession of a firearm in the first degree. His defense was that someone else pulled the trigger.

Jury selection began on May 4, 2015. On the second day of jury selection, the State exercised a peremptory strike against Juror 10, the last African-American in the jury pool. Jefferson challenged this strike with a Batson motion. After going through the three-step Batson analysis, the trial court denied the Batson motion and ruled that the State had provided a nondiscriminatory explanation for its peremptory challenge of Juror 10. The trial proceeded and lasted approximately 10 days.

The jury convicted Jefferson of attempted murder in the first degree, assault in the first degree, and unlawful possession of a firearm in the first degree. Jefferson was sentenced to 337.5 months of incarceration.

Jefferson appealed, and the Court of Appeals affirmed the convictions. He appealed again. This time, the WA Supreme Court granted Jefferson’s appeal and addressed Jefferson then petitioned for review on three issues: (1) whether the trial court erred in denying the Batson motion to deny the State’s peremptory strike of Juror 10 under the current Batson test, (2) whether this court should revisit the Batson test, and (3) whether the trial court erred in denying Jefferson’s motion for mistrial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court described the Batson test. First, the trial court must recognize a prima facie case of discriminatory purpose when a party strikes the last member of a racially cognizable group. Second, the burden shifts to the State to come forward with a race-neutral explanation for the challenge. If the State meets its burden at step two, then third, the trial court then has the duty to determine if the defendant has established purposeful discrimination.

“We hold that the trial court correctly ruled that there was no purposeful discrimination in the peremptory strike of Juror 10 under Batson,” said the Court. “However, our Batson protections are not robust enough to effectively combat racial discrimination during jury selection.” In fact, said the Court, the Batson framework makes it very difficult for defendants to prove discrimination even where it almost certainly exists.

“We need to do better to achieve the objectives of protecting litigants’ rights to equal protection of the laws and jurors’ rights to participate in jury service free from racial discrimination.”

Consequently, the Court modified its three-step Batson test by replacing Batson’ s current inquiry at step three with a new inquiry.

“If a Batson challenge to a peremptory strike of a juror proceeds to that third step of Batson’s three-part inquiry, then the trial court must ask whether an objective observer could view race or ethnicity as a factor in the use of the peremptory strike. If so, then the strike must be denied and the challenge to that strike must be accepted.”

Applying this new standard, the Court found that race could have been a factor in Juror 10’s dismissal. Here, the prosecutor essentially called out Juror 10 with a sarcastic comment for no apparent reason. Taken together with other evidence on the record, the prosecutor lacked racially neutral reasons for striking Juror 10. The strike reflected differential treatment of the sole African-American juror, and hence, the strike supported an inference of implicit bias. The WS Supreme Court quoted the late U.S. Supre Court’s Justice Thurgood Marshall, who expressed his concern about such nebulous justifications in the Batson opinion:

“A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is “sullen,” or “distant,” a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported.”

Furthermore, the WA Supreme Court reasoned that in its Saintcalle opinion, it recognized the pervasive force of unconscious bias, stating, “People are rarely aware of the actual reasons for their discrimination and will genuinely believe the race-neutral reason they create to mask it.”

The Court therefore reversed Jefferson’s convictions and remanded the case back to the trial court for further proceedings.

My opinion? Excellent decision. Although the facts are against the defendant and are sympathetic toward the victim, race should never play a factor in the administration of justice. The WA Supreme Court’s new Batson framework rightfully addresses the problem of implicit race bias. This case is an excellent step in the right direction.

Please contact my office if you, a friend or family member are charged with a crime and there’s some belief that implicit racial bias affects the investigations, prosecution and/or judicial proceedings of the case. It’s very important to hire defense counsel that is sensitive to and familiar with the nuances of racial biases that are implicit throughout the criminal justice system.

Juvenile Life Sentences Ruled Unconstitutional

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Excellent article in the Seattle Times by reporters and  discusses how in State v. Bassett, the Washington State’s Supreme Court ruled that sentencing youth offenders to life in prison without parole is unconstitutional, joining 20 states and Washington D.C. who’ve already outlawed the practice.

In 1996, at the age of 16, Mr. Bassett was convicted of three counts of aggravated first degree murder for the deaths of his mother, father, and brother. The judge commented that Bassett, still a child, was “a walking advertisement” for the death penalty and sentenced him to three consecutive terms of life in prison without the possibility of parole. At the time, 1996, life without parole was the mandatory sentence under our state statute, former RCW 10.95.030 (1993).

The Supreme Court ruled 5-4 that trial courts may not impose a minimum term of life, as that would mean a life without parole sentence, for people convicted of committing a crime when they were younger than 18 years old. The sentencing “constitutes cruel punishment,” and doesn’t achieve the legal goals of retribution or deterrence because children are less culpable than adults, it said. Children convicted of crimes, including the highest degree of murder, are also entitled in Washington to special protections from sentencing courts when possible, the court said.

The ruling comes on the heels of a unanimous decision by the state’s justices earlier this week that struck down the death penalty, declaring its current application to be in violation of Washington’s constitution.

A pediatric psychologist testified that the teenager had suffered from adjustment disorder and struggled to cope with homelessness after his parents kicked him out of the house. Bassett later said that at the time, he wasn’t able to comprehend the long-term consequences of his actions, according to court records.

He hasn’t had any prison violations for 15 years, has earned his GED and was on the Edmonds Community College honor roll. He got married in 2010.

Following research on juvenile brain development, the U.S. Supreme Court in 2012 ruled that automatic life sentences for juveniles were unconstitutional. The state Legislature responded two years later with a law that allowed youth inmates who were sentenced to life as juveniles to have their sentences reconsidered, although they could still be sentenced to life in prison.

Thursday’s ruling eliminates that option for judges.

WA State Abolishes Death Penalty

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But the court’s opinion eliminated it entirely, converted the sentences for the state’s eight death row inmates to life in prison without release, and supported a trend away from capital punishment in the U.S.

“The death penalty is becoming increasingly geographically isolated,” said Robert Dunham, executive director of the Washington, D.C.-based Death Penalty Information Center. “It’s still on the books in 30 states, but it’s not being used in 30 states. It’s becoming a creature of the Deep South and the Southwest.”

Texas continues to execute more prisoners than any other state — 108 since 2010. Florida has executed 28, Georgia 26 and Oklahoma 21 in that time frame. But nationally, death sentences are down 85 percent since the 1990s, Dunham said.

In the past 15 years, seven states — Connecticut, Delaware, Illinois, Maryland, New Jersey, New Mexico and New York — have abandoned capital punishment through court order or legislative act, and three — Colorado, Oregon and Pennsylvania — have adopted moratoriums.

The concerns cited in those states have ranged from procedural matters, such as the information provided to sentencing jurors in New York, to worries about executing an innocent person or racial and other disparities in who is sentenced to death, as was the case in Washington.

“The death penalty is unequally applied — sometimes by where the crime took place, or the county of residence, or the available budgetary resources at any given point in time, or the race of the defendant,” Chief Justice Mary Fairhurst wrote in the lead opinion.

“Our capital punishment law lacks ‘fundamental fairness.”  ~Chief Justice Mary Fairhurst 

According to La Corte and Johnson, defense lawyers had long challenged the death penalty on those grounds. This time, death penalty critics were armed with more data about how capital punishment works, including a statistical analysis by University of Washington sociologists. Their report showed that although prosecutors were not more likely to seek the execution of black defendants, juries were about four times more likely to sentence black defendants to death.

“Now the information is plainly before us,” Fairhurst wrote. “To the extent that race distinguishes the cases, it is clearly impermissible and unconstitutional.”

Violation of No-Contact Order & Defense of Property

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In State v. Yelovich, the WA Supreme Court held that a “Defense of Property” jury instruction is not available when there is a valid court order prohibiting the defendant from contacting the protected party.

BACKGROUND FACTS

Mr. Yelovich and Ms. De Armond dated for more than five years. At some point, and during all times relevant to this case, there was a valid no-contact order prohibiting Yelovich from contacting De Armond. The order forbids Yelovich from “coming near and from having any contact whatsoever, in person or through others, by phone, mail or any means, directly or indirectly” with De Armond. It also prohibited Yelovich from causing any physical harm or bodily injury to De Armond.

On the day in question, Yelovich parked his car in the driveway of his son’s house. He was moving boxes from the garage, and an approximately four-and-a-half-foot wood fence separated him and his car. After about an hour, Yelovich believed he saw someone through the fence, but he could not identify the person. When he went to his car, which had a broken passenger window, he saw that his cell phone and other personal belongings were missing. He saw De Armond walking down the street, and he testified at trial that he “knew then that she did it.”

Yelovich was aware that he was prohibited from contacting De Armond, but he thought the police would not arrive in time to recover his phone. Although he admitted it “was an irrational, radical move,” he chased after her in his car. When he found her a few blocks later, he got out of his car and attempted to take her purse because he believed she had put his phone in it.  A struggle ensued, and De Armond testified that he was “bouncing her off the ground.” Her testimony was corroborated by a Good Samaritan who intervened. He testified that he “saw a man straddling a female. I saw him striking her,” and “he was lifting her up off the ground and slamming her on the ground.”

Both the fire department and police responded to the incident. De Armond was treated for minor injuries, including redness, bruising, and a small laceration. The responding police officer who interviewed De Armond noted she seemed intoxicated and “she had a really hard time keeping herself together.”

The State charged Yelovich with one count of felony violation of a no-contact order predicated on his assault of De Armond and one count of Bail Jumping. At trial, he argued that he was entitled to a jury instruction on defense of property because he was protecting his cell phone, which he believed De Armond had stolen.

For those who don’t know, a jury instruction is a guideline given by the judge to the jury about the law they will have to apply to the facts they have found to be true. The purpose of the instructions is to help the jury arrive at a verdict that follows the law of that jurisdiction. AT any rate, the judge refused, reasoning that Yelovich “was acting offensively, not defensively to protect property.”

The jury convicted Yelovich as charged. He appealed only his felony violation of the no-contact order on the basis that he was improperly denied a jury instruction. The Court of Appeals affirmed the trial court, and Yelovich appealed.

ISSUE

Whether the trial court improperly refuse to instruct the jury on the affirmative defense of defense of property.

COURT’S ANALYSIS & CONCLUSIONS

The SUpreme Court reasoned that under statute, Violation of a No-Contact Order is usually a gross misdemeanor, but it is elevated to a Class C felony if the restrained party assaults the protected party during the violation. Therefore, assault is an essential element of the crime of felony violation of a no-contact order, and the State must prove it occurred beyond a reasonable doubt.

Yelovich relies on Washington’s Self-Defense and Defense of Property Statute to claim that he may use defense of property as an affirmative defense. The statute states:

“The use, attempt, or offer to use force upon or toward the person of another is not unlawful . . . whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary.”

Yelovich argues the statute provides “a valid affirmative defense whenever assault is charged or whenever assault is an element of the charged crime,” and therefore it may be used when the charged crime is felony violation of a no-contact order. However, Yelovich’s position ignores the critical role of the underlying no-contact order in this case.

The Court further reasoned that the standard language included in the order warned Yelovich that as the restrained party, he has the sole responsibility to avoid or refrain from violating the order’s provisions.

“By the terms of the order, Yelovich has no power to engage in self-help if doing so brings him into contact with De Armond. This bright line rule ensures that victims are not left wondering whether conduct prohibited by the no-contact order might later be deemed lawful. It therefore furthers the legislature’s goal to provide victims of domestic violence the maximum protection from abuse.”

The Court concluded that, in sum, Yelovich had sole responsibility for not violating the terms of a valid court order that forbids him from contacting De Armond, and so he had no authority to chase De Armond when he believed she had taken his phone. Accordingly, Yelovich was not entitled to a jury instruction on defense of property because his conduct violated the court order.

My opinion? Although the statute is very clear that mutual violations of the order and Defense of Property is not a defense, other defenses do exist. Please contact my office if you, a friend or family member face criminal charges for violating a no-contact order.

Definition of “Porn” Vague

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In State v. Padilla, the WA Supreme Court held that a defendant’s parole conditions prohibiting him from possessing or accessing pornographic materials was unconstitutionally vague because the accompanying definition of “pornographic materials” is vague and overbroad.

BACKGROUND FACTS

Mr. Padilla was convicted for communicating with a minor for immoral purposes. The court sentenced him to 75 days of confinement and 12 months of community custody, imposing multiple conditions.

Padilla challenged the condition prohibiting his possession and access to pornographic materials. The term “pornographic material’ was defined by Padilla’s Community Corrections Officer (CCO) as “images of sexual intercourse, simulated or real, masturbation, or the display of intimate body parts.”

 COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that a legal prohibition, such as a community custody condition, is
unconstitutionally vague if (1) it does not sufficiently define the proscribed conduct so an ordinary person can understand the prohibition or (2) it does not provide sufficiently ascertainable standards to protect against arbitrary enforcement.  Furthermore, a vague condition infringing on protected First Amendment speech can chill the exercise of those protected freedoms. A restriction implicating First Amendment rights demands a greater degree of specificity and must be reasonably necessary to accomplish the essential needs of the state and public order.

“Padilla notes that the prohibition against viewing depictions of simulated sex would unnecessarily encompass movies and television shows not created for the sole purpose of sexual gratification,” said the Court. “We agree.”

“Films such as Titanic and television shows such as Game of Thrones depict acts of simulated intercourse, but would not ordinarily be considered ‘pornographic material.’ We agree. The prohibition against viewing depictions of intimate body parts impermissibly extends to a variety of works of arts, books, advertisements, movies, and television shows.” See Jenkins v. Georgia, (the depiction of nudity alone is not enough to make material legally obscene).”

The Court further reasoned that, on its face, the plain language of the pornography condition and its relevant definition is ambiguous. In application, the definition does not provide adequate notice of what behaviors Padilla is prohibited from committing and also encompasses the prohibition of constitutionally protected speech. “But also, delegating the authority to determine the prohibition boundaries to an individual CCO creates a real danger that the prohibition on pornography may ultimately translate to a prohibition on whatever the CCO personally finds titillating,” said the Court.

“In the present case, Padilla’s sentencing condition and its definition similarly fails to adequately put him on notice of which materials are prohibited and leaves him vulnerable to arbitrary enforcement,” said the Court. “Therefore, the condition is unconstitutionally vague.”

With that, the WA Supreme Court reverse the Court of Appeals’ decision upholding the condition and remanded the issue back to the trial court for further definition of the term “pornographic materials” following a determination of whether the restriction is narrowly
tailored based on Padilla’s conviction.

Contact my office if you, a friend or family member is on parole and allegedly violating certain conditions of their community custody responsibilities. An experienced defense attorney could frame legal arguments showing that, similar to this case, the CCO might actually be enforcing rules and conditions which are too vague to be legal.

Probation Searches

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in State v. Cornwell, the WA Supreme Court held that Article I, section 7 of the Washington Constitution requires a nexus between the property searched and the suspected probation violation. Here, there was no nexus between the defendant’s failure to report to DOC and the car which the defendant was driving.

BACKGROUND FACTS

In September 2013, petitioner Curtis Lament Cornwell was placed on probation. His judgment and sentence allowed his probation officer to impose conditions of his release, which included the following provision:

“I am aware that I am subject to search and seizure of my person, residence, automobile, or other personal property if there is reasonable cause on the part of the Department of Corrections to believe that I have violated the conditions/requirements or instructions above.”

Cornwell failed to report to the Department of Corrections (DOC) in violation of his probation, and DOC subsequently issued a warrant for his arrest.

Cornwell first came to the attention of Tacoma Police Department Officer Randy Frisbie and CCO Thomas Grabski because of a distinctive Chevrolet Monte Carlo observed outside a house suspected of being a site for drug sales and prostitution. An officer conducted a records check and determined he had an outstanding warrant.

In late November 2014, Officer Frisbie testified that he intended to stop the vehicle because he believed Cornwell was driving it and he had an outstanding warrant. He did not initiate the stop based on any belief that the car contained drugs or a gun or because he observed a traffic violation.

Before Officer Frisbie could activate his police lights, the car pulled into a driveway and Cornwell began to exit it. Cornwell ignored Officer Frisbie’s orders to stay in the vehicle, and Officer Frisbie believed Cornwell was attempting to distance himself from the car. Officer Frisbie then ordered Cornwell to the ground. Cornwell started to lower himself in apparent compliance before jumping up and running. Cornwell was apprehended after both officers deployed their tasers. He had $1,573 on his person at the time of arrest.

After securing Cornwell, Officer Patterson called CCO Grabski to the scene. Upon arrival, CCO Grabski searched the Monte Carlo. He described the basis for his search as follows:

“When people are in violation of probation, they’re subject to search. So he’s driving a vehicle, he has a felony warrant for his arrest by DOC, which is in violation of his probation. He’s driving the vehicle, he has the ability to access to enter the vehicle, so I’m searching the car to make sure there’s no further violations of his probation.”

In this case, CCO Grabski found a black nylon bag sitting on the front seat of the car. The bag contained oxycodone, amphetamine and methamphetamine pills, sim cards, and small spoons. A cell phone was also found in the car.

Cornwell moved pursuant to CrR 3.6 to suppress the evidence obtained during the vehicle search. The trial court denied the motion.

A jury convicted Cornwell of three counts of unlawful possession of a controlled substance with intent to deliver and one count of resisting arrest. The Court of Appeals affirmed the conviction. The WA Supreme Court granted review on the issue of whether the search of the car Cornwell was driving an unlawful search.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that individuals on probation are not entitled to the full protection of the Constitution. The Court reasoned that probationers have a reduced expectations of privacy because they are serving their time outside the prison walls. Accordingly, it is constitutionally permissible for a CCO to search an individual based only on a well-founded or reasonable suspicion of a probation violation, rather than a search warrant supported by probable cause.

However, the Court also also reasoned that the goals of the probation process can be accomplished with rules and procedures that provide both the necessary societal protections as well as the necessary constitutional protections.

“Limiting the scope of a CCO’s search to property reasonably believed to have a nexus with the suspected probation violation protects the privacy and dignity of individuals on probation while still allowing the State ample supervision,” said the Court. “We therefore hold that article I, section 7 permits a warrantless search of the property of an individual on probation only where there is a nexus between the property searched and the alleged probation violation.”

The Court reasoned that the CCO’s search of Cornwell’s car exceeded its lawful scope.

“While CCO Grabski may have suspected Cornwell violated other probation conditions, the only probation violation supported by the record is Cornwell’s failure to report,” said the Court. It also reasoned that CCO Grabski’s testimony at the suppression hearing confirmed that he had no expectation that the search would produce evidence of Cornwell’s failure to report.

“In this case, the search of Cornwell’s vehicle was unlawful because there was no nexus between the search and his suspected probation violation of failure to report to DOC,” concluded the Court. “The evidence seized during the search should have been suppressed. Accordingly, we reverse the Court of Appeals and Cornwell’s convictions.”

Contact my office if you, a friend or family member were subject to an unlawful search. It is imperative to hire experienced and competent defense counsel to suppress evidence of an unlawful search as quickly as possible.

Common Authority to Search

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In State v. Vanhollebeke, the WA Supreme Court held that a driver’s refusal to consent to the search of his or her vehicle must generally be respected. But where the facts reasonably raise a significant question about whether the driver had any legitimate claim to the vehicle at all, the police may contact the absent owner and then get that owner’s consent to search instead.

BACKGROUND FACTS

Defendant Justin Vanhollebeke drove his truck the wrong way down a one-way street. Not surprisingly, an officer stopped him. Vanhollebeke ignored the officer’s command to stay in the vehicle, got out and locked the vehicle behind him, left a punched out ignition and apparent drug paraphernalia behind in plain view of the police, and had no key. The police asked Vanhollebeke for consent to search the vehicle. Vanhollebeke refused. A police officer then contacted the truck’s owner, received the absent owner’s consent and a key to search, and then returned to search the vehicle.

Vanhollebeke was charged with unlawful possession of a firearm found in the truck.

Vanhollebeke moved to suppress the fruits of the search, arguing that the warrantless search was unconstitutional. The trial court denied the motion, reasoning that there’s a reduced expectation of privacy in a borrowed vehicle. The trial court made no explicit findings of fact regarding the officers’ motivation for contacting Mr. Casteel. Vanhollebeke was found guilty, sentenced to 34 months confinement, and assessed fees of $1,380. He appealed on the issue of whether the search was constitutional.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reasoned that warrantless searches are presumptively unconstitutional, unless they fit within one of the few, narrow exceptions to the warrant requirement. Under both the Washington and United States Constitutions, warrantless searches are per se unreasonable. However, there are a few jealously and carefully drawn exceptions to the warrant requirement.

“One of those exceptions is for consent, and consent is the exception at issue here,” said the Court. It elaborated that consent to a search establishes the validity of that search if the person giving consent has the authority to so consent. Furthermore, the Court reasoned that while the driver of an absent owner’s vehicle does not ordinarily assume the risk that the absent owner will consent to a search, the driver does assume that risk where the facts reasonably suggest it is stolen.

Next, the Court adopted and applied the Fourth Amendment standard for valid third-party consent to a search is a two-part test: (1) Did the consenting party have authority to permit the search in his own right? And if so, (2) did the defendant assume the risk that the third party would permit a search? Both this Court and the United States Supreme Court refer to this test as the “common authority rule.” In short, the common authority rule refers to a legal principle that permits a person to give consent to a law officer for the purpose of searching another person’s property. The common-authority rule provides for searches without warrant. The principle can be applied only when both parties have access or control to the same property.

The Consenting Party Had Authority to Permit the Search.

The WA Supreme Court held that here, the consenting party, the owner, clearly had the authority to consent to the search in his own right. “There is no dispute that the first part of the test is satisfied in this case as the truck’s owner, Casteel, could clearly consent to its search in his own right,” said the Court. “The driver of a car owned by another does not ordinarily assume the risk that the owner will consent to a search.”

Vanhollebeke, by Borrowing Casteel’s truck, Assumed the Risk that Casteel Might Allow Others to Search It.

The Court held that the evidence in this case gave the officers good reasons to believe the vehicle was stolen. This driver, without a key or identification and with a punched out ignition clearly visible, therefore assumed the risk that the police would contact the absent owner and seek consent to search.

The Court elaborated that this reasoning is consistent with the reasoning in the United States Supreme Court’s “common authority” cases that legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.

“The search in this case did not violate the Fourth Amendment,” concluded the Court.

“Original Gangster” Comment Improper, But Not Prejudicial

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

BACKGROUND FACTS

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Domestic Violence & Cell Phone Privacy

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In State v. Smith, the WA Supreme Court held that the accidental recording of a domestic violence confrontation between the defendant and his wife was admissible at trial and did not violate the defendant’s rights under the Washington Privacy Act.

BACKGROUND FACTS

John Garrett Smith and Sheryl Smith were married in 2011. On the evening of June 2, 2013, the Smiths engaged in an argument at their home that turned violent. During the incident, Mr. Smith used the home’s landline cordless phone to dial his cell phone in an attempt to locate the cell phone. The cell phone’s voice mail system recorded the incident because Mr. Smith left the landline open during his attempt to find his cell phone. This voice mail contained sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female and name calling by the male.

Mr. Smith punched and strangled Mrs. Smith to the point of unconsciousness and then left their home. When Mrs. Smith regained consciousness, her eyes were black and swollen shut, her face was swollen and bleeding, and she had difficulty breathing.’ Mrs. Smith was hospitalized for several days due to the severity of her injuries, which included a facial fracture and a concussion. For months after the assault, she suffered severe head pain, double vision, nausea, and vertigo.

The State charged Mr. Smith with attempted first degree murder, attempted second degree murder, first degree assault, and second degree assault for the incident.

The Motion to Suppress & Trial

Prior to trial, Mr. Smith filed a motion to suppress the audio recording found on his cell phone that captured part of the incident, including him threatening to kill his wife. Mr. Smith argued that Ms. Williams had unlawfully intercepted the recording pursuant to the Washington Privacy Act, when she listened to the voice message left on his phone. The trial court denied the motion to suppress, ruling that Ms. Williams’s conduct did not constitute an interception. The court also ruled that Washington’s Privacy Act, which prohibits the recording of private conversations without consent, did not apply because the information was accidentally recorded.

The case proceeded to a bench trial. The trial court found Mr. Smith guilty of attempted second degree murder, second degree assault, and the related special allegations of domestic violence, but acquitted him of the remaining counts and the aggravator. Mr. Smith was sentenced to a standard range sentence of 144 months.

The Appeal

He appealed, and his appellate argument focused on the trial court’s denial of the motion to suppress. Smith continued to assert that the recording was unlawfully admitted because Ms. Williams had unlawfully intercepted it.

The Court of Appeals reversed Mr. Smith’s conviction for attempted second degree murder, holding that the trial court erred in denying the motion to suppress the recording of the incident because (1) the recording was of a “private conversation” and (2) Mr. Smith had unlawfully recorded the “private conversation,” despite the fact that the recording was made inadvertently. The Court of Appeals rejected Mr. Smith’s assertion that Ms. Williams had unlawfully intercepted the conversation, and decided the case on a different issue, that is, whether Mr. Smith’s actions violated the privacy act. The State sought review on the issue of how the privacy act is to be properly applied in this case.

ISSUE

Whether the voice mail recording is admissible in Mr. Smith’s criminal prosecution.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court  reverse the Court of Appeals and reinstated Mr. Smith’s attempted second degree murder conviction.

The Court reasoned that accidental, inadvertent recording on a cell phone voice mail of a domestic violence assault did not contain a “conversation” within the meaning of the privacy act, where the recorded verbal exchange consisted mostly of sounds of a woman screaming, a male claiming the woman brought the assault on herself, more screams from the female, name calling by the male, and the man stating he will kill the woman when she told him to get away. Furthermore, the owner of the cell phone was deemed to have consented to the voice mail recording due to his familiarity with that function.

The lead opinion was authored by Justice Madsen and signed by Justices Wiggins, Johnson and Owens. Justice González concurred in the result on the grounds that the defendant cannot invade his own privacy and cannot object about a recording he made being used against himself. Justice Gordon McCloud authored a separate concurring opinion, which was signed by Justices Stephens, Yu, and Fairhurst, in which she stated that the verbal exchange on the recording constitutes a “private” conversation which was solely admissible pursuant to statute.

A Vehicle is a “Premises”

Image result for sleeping in a suv

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

BACKGROUND FACTS

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

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

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

ISSUE

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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