Category Archives: Washington Supreme Court

Criminal Conviction Reversed on Prosecutor’s Race-Based Misconduct & Voir Dire.

Assault, Bellingham Defense Attorney, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Race & Law, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Survey: Trump's immigration rhetoric is negatively impacting Latinos' health

In State v. Zamora, the WA Supreme Court held that a Prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

BACKGROUND FACTS

This case arises from a violent police confrontation that escalated far beyond what should have happened. On Super Bowl Sunday, February 5, 2017, Joseph Zamora was walking to his niece’s house. A neighbor called the police to report a possible vehicle prowler. When Zamora reached the driveway of his niece’s home, he was contacted by responding officer Kevin Hake. Hake quickly became nervous because of Zamora’s demeanor. Fearing Zamora had a weapon, Hake grabbed Zamora and attempted to restrain him.

A struggle ensued and escalated to include what may be described as extreme acts of violence. Ultimately, eight officers were involved in subduing Zamora. When responding paramedics arrived, Zamora was handcuffed, hog-tied, and lying face down in the snow with two officers restraining him. He had no heartbeat or pulse. It took the paramedics seven minutes to revive him. Zamora was taken to the hospital and remained in intensive care for approximately four weeks.

Zamora was charged with two counts of Assault Third Degree on the officers who “restrained” him. Officer Hake’s injuries included some small scratches around his hand and wrist and some bruising. Officer Welsh sustained an injury to his hand from punching Zamora in the back of the head multiple times. Zamora’s case proceeded to trial.

The Grant County Prosecutor began voir dire. He introduced the topics of border security, illegal immigration, and crimes committed by undocumented immigrants. The prosecutor repeatedly elicited potential jurors’ comments and views on these topics. At one point, he referred to “100,000 people illegally” crossing the border each month. He asked jurors whether “we have or we don’t have enough border security.” He also asked jurors if they had “heard about the recent drug bust down at Nogales, Arizona where they picked up enough Fentanyl to killed 65 million Americans.” Defense counsel did not object to the prosecutor’s questions and remarks on border security, illegal immigration, undocumented immigrants, and drug smuggling.

A jury found Zamora guilty as charged.

Zamora appealed. He argued his right to an impartial jury was violated when the Prosecutor appealed to jurors’ potential racial bias during voir dire. Division Three of the Court of Appeals affirmed Zamora’s convictions, concluding that his constitutional rights were not violated. Zamora appealed to the WA Supreme Court. They accepted review.

LEGAL ISSUE

Whether the prosecutor committed misconduct when, during jury selection, he repeatedly asked the potential jurors about their views on unlawful immigration, border security, undocumented immigrants, and crimes committed by undocumented immigrants.

COURT’S ANALYSIS & CONCLUSIONS

The Court concluded that the prosecutor intentionally appealed to the jurors’ potential racial bias in a way that undermined Zamora’s presumption of innocence. Therefore, Zamora was denied his constitutional right to an impartial jury because of the prosecutor’s race-based misconduct.

Justice Charled W. Johnson authored the Court’s opinion. He began by explaining that the Sixth and Fourteenth Amendments to the United States Constitution and the Washington State Constitution guarantee a criminal defendant the right to an impartial jury. Justice Johnson said the Court has long recognized that the constitutional right to a jury trial includes the right to an unbiased and unprejudiced jury. He also upheld the right to fair trial in the face of prosecutorial misconduct:

“As a quasi-judicial officer and a representative of the State, a prosecutor owes a duty to a defendant to see that their rights to a constitutionally fair trial are not violated. Thus, a claim of prosecutorial misconduct directly implicates the constitutional right to a fair trial.” ~Justice Johnson, WA Supreme Court.

Justice Johnson also explained that in order to prevail on a prosecutorial misconduct claim, a defendant who timely objects must prove that the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial. If the defendant does not object, on appeal the defendant must show the improper conduct resulted in incurable prejudice.

However, when the misconduct implicates racial bias, “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence,” courts will vacate the conviction unless the State proves beyond a reasonable doubt that the race-based misconduct did not affect the jury’s verdict.

“To determine whether the prosecutor’s conduct in this case flagrantly or apparently intentionally appealed to jurors’ potential racial bias, we ask whether an objective observer could view the prosecutor’s questions and comments during voir dire as an appeal to the jury panel’s potential prejudice, bias, or stereotypes about Latinxs. The objective observer is a person who is aware of the history of race and ethnic discrimination in the United States and aware of implicit, institutional, and unconscious biases, in addition to purposeful discrimination.” ~Justice Johnson, WA Supreme Court

Here, the Court reasoned that the prosecutor’s questions and remarks implicated the defendant’s ethnicity. The prosecutor’s conduct appealed to the jurors’ potential racial or ethnic bias, stereotypes, or prejudice. The Court said we must be vigilant of conduct that appeals to racial or ethnic bias even when not expressly referencing race or ethnicity:

“The state-sanctioned invocation of racial or ethnic bias in the justice system is unacceptable. Accordingly, we hold that the prosecutor in this case committed race-based misconduct during voir dire, and the resulting prejudice to the defendant is incurable and requires reversal. We reverse the Court of Appeals and reverse and vacate the convictions.” ~Justice Johnson, WA Supreme Court

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Offender Scores Include Bail Jumping Even When the Underlying Conviction Was Dismissed Under State v. Blake

Assault, Bail Jumping, Bellingham, Drug Offenses, Firearm, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Felony Sentencing Guidelines | California Felony Attorney

In State v. Paniagua, the WA Court of Appeals held that convictions for Bail Jumping are appropriately included in the offender score even when the offender failed to appear at a scheduled hearing for a pending charge of Blake-related Drug Offense.

FACTUAL BACKGROUND

This appeal considered one of many consequences attended to the Washington Supreme Court’s landmark decision in charge of State v. Blake. The decision held Washington’s possession of a controlled substance criminal statute unconstitutional. In turn, Washington courts have removed, from offender scores, earlier convictions for possession of a controlled substance.

This appeal travels further down the path and asks whether a court should remove, from the offender score, a former conviction for bail jumping when the offender failed to appear at a scheduled hearing while on bail pending charges for possession of a controlled substance.

Victor Paniagua only challenges his sentence for his 2018 convictions for Homicide and other crimes. The relevant facts begin, however, with earlier convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful possession of a controlled substance. In 2011, the State again convicted Paniagua with possession of a controlled substance and the additional charge of bail jumping. The bail jumping charge arose from Paniagua’s failure to appear at a court hearing on the 2011 possession charge.

In June 2018, a jury found Victor Paniagua guilty of second degree murder, second degree assault, unlawful possession of a firearm, and witness tampering. The trial court calculated Paniagua’s offender score at 8 for the murder and assault charges. It also calculated a 7 for the unlawful firearm possession and witness tampering charges. The offender score calculation included one point each for the 2007 and 2011 possession of a controlled substance convictions and one point for the 2011 bail jumping conviction. As a result, the
court then sentenced Paniagua to 453 months’ total confinement.

After the issuance of State v. Blake, Mr. Paniagua requested resentencing. He argued the superior court should resentence him and reduce his offender score by three points. Ultimately, the superior court deducted only two points from Paniagua’s offender score. The superior court resentenced Paniagua to 412 months’ total confinement.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that State v. Blake held that Washington’s drug possession statute violated the due process clause. The statute penalized one for passive, innocent, or no conduct without requiring the State to prove intent.

“The Washington Supreme Court also did not address, in State v. Blake, the retroactivity of its decision,” said the Court of Appeals. “Nevertheless, the State and other courts have operated on the assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is and has always been a legal nullity.”

Next, the Court of Appeals decided whether the bail jumping conviction was invalid on its face. When a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its face. Here, however, the State did not convict Mr. Paniagua of a nonexistent crime when convicting him of bail jumping. “The crime remains in existence today,” said the Court of Appeals. “The conviction is not facially invalid.”

Next, the court raised and dismissed Paniagua’s arguments that the State convicted him of bail jumping while facing charges brought pursuant to an unconstitutional statute:

“Still, he cites no decision supporting the proposition that being convicted or held, under an unconstitutional criminal statute, renders escaping from jail or bail jumping permissible. To the contrary, under the universal rule, the unconstitutionality of a statute under which the defendant was convicted or charged does not justify escape from imprisonment . . . We find no decision addressing bail jumping when facing charges under an unconstitutional statute.” ~WA Court of Appeals.

With that, the Court of Appeals affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for bail jumping in his offender score and affirmed his resentencing.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court: Race Must be Considered in Determining Legality of Police Stops and Seizures

ACLU, Bellingham Defense Attorney, Eluding, felony, Firearm, Making False Statements, Mount Vernon Criminal Defense Attorney, Race & Law, Search and Seizure, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Center for the Study of Race and Law | University of Virginia School of Law

In State v. Sum, the WA Supreme Court held that  a person’s race – and law enforcement’s long history of discrimination against people of color – should be taken into account when determining the legality of police seizures.

FACTUAL BACKGROUND

The case concerns Palla Sum, a person of color who identifies himself as Asian/Pacific Islander. Mr. Sum was sleeping in his car in Tacoma one morning in April 2019 when police came upon him. Deputy Rickerson An officer ran his plates. The car was not stolen. There is no indication that it was parked illegally. Nevertheless, the car attracted the deputy’s attention because “it was parked there.”

The officer knocked on the window, asked Sum questions and asked him for identification. Sum gave a false name and the officer went back to his cruiser to check records. Sum then drove off, crashed into a front lawn and was caught as he attempted to run away.

Sum was subsequently charged with Making a False Statement, Eluding and Unlawful Possession of a Firearm, after a gun was found in his car.

Sum filed a pretrial motion to suppress pursuant to CrR 3.6. He argued that he was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft. The court denied Sum’s motion to suppress. It ruled that because Sum was not seized when Rickerson asked him to identify himself, because the did not retain Sum’s physical identification to conduct his records check. Sum was convicted of all three charges by a jury.

Although the WA Court of Appeals upheld his conviction, Sum again appealed to the WA Supreme Court. He argued  that there is no justification—aside from unacceptably ignoring the issue of race altogether—for courts considering the totality of the circumstances to disregard the effect of race as one of the circumstances affecting evaluation of police contact.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the standard of review for addressing similar cases. It reasoned that the search and seizure inquiry is an objective test. An allegedly seized person has the burden to show that a seizure occurred. It further clarified that a person is seized if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force.

The Court also took its “objective analysis” test a step further:

“For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.” ~Justice Mary Yu, WA Supreme Court

Furthermore, wrote the Court, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

Next, the Court applied its now race-conscious test to the facts of the case. It reasoned that based on the totality of the circumstances, Mr. Sum was seized when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft.

“As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum,” wrote Justice Yu. “As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.”

My opinion? Good decision.

In an amicus brief, public defender and civil rights groups argued that law enforcement’s history of discriminating against people of color needs to be reflected in how the law is interpreted. The groups, including the King County Department of Public Defense and the ACLU of Washington, wrote the following:

“Centuries of violence and dehumanizing treatment of people of color have required BIPOC communities to develop survival strategies that demand over-compliance with law enforcement . . . For courts to continue to blind themselves to that reality when evaluating the freedom an individual would feel to unilaterally terminate a law enforcement contact is to further enshrine existing racial disparities into the legal system.”

Please review my Search & Seizure guide and  contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

WA Supreme Court Rules Against Edmonds Gun Storage Law

Bellingham Defense Attorney, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Gun Laws - FindLaw

In Bass v. City of Edmonds, the Washington Supreme Court struck down an Edmonds gun storage ordinance in a court order reaffirming state law that local governments can’t impose their own firearms regulations.

FACTUAL BACKGROUND

After robust debate following a mass shooting at the nearby Marysville Pilchuck High School, the Edmonds City Council adopted an ordinance requiring residents to safely store their firearms when not in use. Ordinance 4120, codified as Edmonds City Code (ECC) chapter 5.26. The ordinance contains two operative provisions. Under the “storage provision,”

“It shall be a civil infraction for any person to store or keep any firearm in any premises unless such weapon is secured by a locking device, properly engaged so as to render such weapon inaccessible or unusable to any person other than the owner or other lawfully authorized user.”

“Notwithstanding the foregoing, for purposes of this section, such weapon shall be deemed lawfully stored or lawfully kept if carried by or under the control of tthe owner or other lawfully authorized user.”

ECC 5.26.020. Under the “unauthorized access” provision,

“It shall be a civil infraction if any person knows or reasonably should know that a minor, an at-risk person, or a prohibited person is likely to gain access to a firearm belonging to or under the control of that person, and a minor, an at-risk person, or a prohibited person obtains the firearm.”

Violation of either provision carries a civil fine of as much as $10,000 if an at-risk person or child gained access to an unsecured gun.

At around the same time, Washington voters enacted Initiative 1639. This initiative, among many other things, criminalizes unsafe storage of firearms but in more limited circumstances than Edmonds’ ordinance. Unlike the City of Edmonds ordinance, the voter  initiative – later codified as RCW 9.41.360 – specifically did not mandate how or where a firearm must be stored.

The legality of the Edmonds’ ordinance was challenged and eventually made its way to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court found that the plaintiffs had legal standing to challenge the ordinance.

Next, the Court turned to the issue of whether existing statute under RCW 9.41.290 preempts this ordinance. The statute reads the following, in part:

“The state of Washington hereby fully occupies and preempts the entire field of firearms regulation within the boundaries of the state, including the registration, licensing, possession, purchase, sale, acquisition, transfer, discharge, and transportation of firearms, or any other element relating to firearms or parts thereof, including ammunition and reloader components. Cities, towns, and counties or other municipalities may enact only those laws and ordinances relating to firearms that are specifically authorized by state law, as in RCW 9.41.300, and are consistent with this chapter.”  ~RCW 9.41.290

Ultimately, the court ruled that Washington state law RCW 9.41.290  “fully occupies and preempts the entire field of firearms regulation within the boundaries of the state.”

Thursday’s ruling was a victory for gun rights organizations, such as the National Rifle Association and the Bellevue-based Second Amendment Foundation, both of which participated in the legal challenge.

Please contact my office if you, a friend or family member are charged with a firearm offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Animal Cruelty Can Be DV

Animal Abuse, Bellingham Defense Attorney, Domestic Violence, felony, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Animal Cruelty and Domestic Violence - The Link Between Cruelty to Animals and Violence Toward Humans

In State v. Abdi-Issa, the WA Supreme Court held that Animal Cruelty may be designated
as a crime of Domestic Violence.

BACKGROUND FACTS

Ms. Fairbanks began dating Mr. Abdi-Issa shortly after she moved to Seattle with her dog, Mona. Mona was a small Chihuahua and Dachshund mix. Fairbanks testified she was close to Mona. Abdi-Issa, however, had a history of disliking Mona. Abdi-Issa was abusive toward Fairbanks and Mona, even threatening to kill them both.

One evening, while they were out in Seattle’s International District, Abdi-Issa insisted Fairbanks let him take Mona on a walk. Fairbanks objected, but Abdi-Issa ignored her and left with Mona. Not long after he left, Abdi-Issa called Fairbanks claiming that Mona had gotten out of her harness and that he could not find her. Fairbanks did not believe him, as Mona had never gotten out of her harness before. Abdi-Issa refused to tell her more. Fairbanks began to panic after she heard Mona yelping over the phone.

Around that same time, bystanders heard a sound of great distress. One of the bystanders was Ms. Ludin. She followed the sound and saw Abdi-Issa beating and making “brutal stabbing” motions toward Mona. She also saw Abdi-Issa kick Mona so hard that she went up into the air and into the bushes. Each time Mona was struck she made a screeching, screaming, pained, sound that was at last followed by silence.

Seattle Police Officers responded to the 911 call. Mona was found, still alive, underneath a bush. Officers transported Mona to an emergency veterinary clinic. Mona arrived at the clinic nearly comatose. She had severe swelling in her brain, bruising on her chest, and a wound to the top of her head. By the time Fairbanks arrived at the veterinary clinic Mona had died. A necropsy found that Mona had died from multiple instances of blunt force trauma.

The State charged Abdi-Issa with First Degree Animal Cruelty and sought a domestic violence designation. The State also charged two sentencing aggravators: (1) that the crime had a destructive and foreseeable impact on persons other than the victim, and (2) that Abdi-Issa’s conduct during the crime of domestic violence manifested deliberate cruelty or intimidation of the victim. Abdi-Issa unsuccessfully moved to dismiss the domestic violence designation and aggravators multiple times.

The jury found Abdi-Issa guilty of animal cruelty. The jury also found that Abdi-Issa and Fairbanks were in a domestic relationship prior to the crime. This allowed for a domestic violence designation.

The court imposed the maximum 12-month sentence for the crime of animal cruelty, and an additional 6 months for the aggravator, sentencing Abdi-Issa to an 18-month prison sentence. Based on the domestic violence designation, the court also imposed a no-contact order prohibiting Abdi-Issa from having contact with Fairbanks.

However,  the Court of Appeals vacated the domestic violence designation, the no-contact order, and the sentencing aggravator. The State appealed. The WA Supreme Court granted review and addressed the State’s appeal.

COURT’S ANALYSIS AND CONCLUSIONS

1. Animal Cruelty as a Crime of Domestic Violence

First, the WA Supreme Court decided that Animal Cruelty may be designated a crime of domestic violence. At first, the Court said Abdi-Issa correctly argued that Animal Cruelty is not a designated DV crime.

“But the list of crimes is explicitly nonexclusive,” wrote Justice Gonzalez. The court further reasoned that many of the designated DV crimes, including Burglary and Malicious Mischief, are against a victim’s property.

“Pets, as a matter of law, are considered personal property. Here, Fairbanks was directly harmed as a result of Abdi-Issa’s violent killing of her beloved pet and companion. She is plainly a victim of Abdi-Issa’s crime.” ~Justice Steven C. Gonzalez, WA Supreme Court

2. Sentencing Aggravator—Impact on Others

Next, the Court addressed whether the “Impact on Others” sentencing aggravator was appropriate. Here, defendants face increased consequences if the offense involves a “destructive and foreseeable impact on persons other than the victim.” Justice Gonzalez emphasized how Ms. Ludin, the bystander who witnessed the attack on Mona, was deeply affected by the incident.

“Ludin made the 911 call and was very distressed when the police arrived. Ludin testified that she had a severe panic attack that night, sitting in her car for a long time before she was calm enough to drive herself home. She continued to have flashbacks, had trouble sleeping, and would go into a state of panic whenever she heard a ‘high pitched, squeaky sound.’ Abdi-Issa’s act had a destructive and foreseeable impact on Ludin.

Abdi-Issa’s actions impacted someone other than Fairbanks. This emotional and psychological trauma will be something that Ludin and Fairbanks continue to carry. The sentencing aggravator was properly applied in this case.” ~Justice Steven C. Gonzalez, WA Supreme Court

Consequently, the Court held that Animal Cruelty can be designated as a DV crime and that the sentencing aggravators were appropriate.

Please contact my office if you, a friend or family member are charged with Domestic Violence or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Cell Site Location Info

Bellingham Defense Attorney, Burglary, Cell Phone, Mount Vernon Criminal Defense Attorney, Possession of Stolen Property, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,
Find Your Nearest Cell Tower in Five Minutes or Less: 2021 Edition
In State v. Denham, the WA Supreme Court held there was a sufficient nexus between the defendant’s seized phone records and the suspected criminal activity to support the issuance of a search warrant.
BACKGROUND FACTS
A valuable diamond was stolen from a jewelry store. Within days, the Defendant Mr.  Denham sold that diamond. Police suspected Denham committed the burglary and got a warrant for his cell phone records. Cell site location information included in those phone records placed Denham’s phone near the jewelry store around the time of the burglary.
Mr. Denham was charged and ultimately convicted with second degree burglary and first degree trafficking in stolen property. At Denham’s bench trial, The trial judge cited the
fact that Denham had made phone calls that were routed through the cell tower in
the parking lot of the jewelry store around the time of the burglary. Ultimately, the trial judge found Denham guilty as charged.
Mr Denham appealed his case to the WA Court of Appeals. He challenged the admissibility of the search warrant and the evidence it produced. His argument was that the warrant based on generalizations and did not establish that evidence of wrongdoing would likely be found in his phone records. The WA Court of Appeals agreed with Mr. Denham. The State, however, filed its own appeal. And Mr. Denham’s was heard in the WA Supreme Court.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court began by discussing the admissibility of cell phone records.
“Our constitutions protect individual privacy against state intrusion,” said Justice Gonzalez, who authored the opinion.  He said that under the U.S. Constitution and WA State Constitution, police must have either the authority of a warrant or a well-established exception to the warrant requirement to lawfully intrude into an individual’s private affairs.
“This constitutional protection extends to cell phone location information held by cell phone companies,” said Justice Gonzalez.  He acknowledged that time-stamped data contained in cell phones provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.
Next, Justice Gonzalez described how a search warrant should be issued only if it shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched. “There must be a nexus between criminal activity and the item to be seized and between that item and the place to be searched,” he said. “The warrant must also describe with particularity the place to be searched and the things to be seized.”
With that, Justice Gonzalez reasoned that the search warrant affidavits were proper:
“These affidavits present reasonable grounds to believe that the phones associated with the phone numbers belonged to Denham based on Denham’s own use of the numbers with his probation officers and with various businesses, that Denham had the phones around the time of the burglary because of specific facts suggesting he had the phones days before and after the date in question, that Denham burgled the store, and that Denham trafficked distinctive pieces stolen from the store. They also allege that Denham had both phones at the time of the burglary and used one to arrange the sale of the diamond that was the basis of the trafficking charge.
Taken together, this is sufficient to raise a reasonable inference that evidence of burglary would be found in the cell site location information . . . The fact that there are some generalizations in the inferential chain does not defeat the reasonableness of the inference.” ~Justice Gonzalez, WA Supreme Court
Justice Gonzalez concluded by holding that the search warrant contained sufficient detail to conclude that evidence of a crime would more likely than not be found in the cell site location information in telephone company records of Denham’s cell phones.
Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Denham’s convictions.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Senate Passes Bill to Recriminalize Drug Possession

Bellingham Defense Attorney, Drug Offenses, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , ,

Washington State Supreme Court Rules Drug Possession Law Unconstitutional In 5-4 Decision

Great article by Sara Gentzler of the News Tribune reports that the Washington State Senate approved a bill Thursday that would make drug possession a gross misdemeanor and require diversion to treatment for a person’s first two offenses.

The measure comes in response to the WA State Supreme Court’s so-called Blake decision in February that made the state’s simple drug possession law unconstitutional.

While the proposal captured enough votes to move over to the House of Representatives for more consideration, it did not amass broad support and laid bare disagreements among lawmakers.

A majority of justices on the state Supreme Court found the state’s law was unconstitutional because it didn’t require prosecutors to prove an accused person knowingly or intentionally had drugs. The decision, known as State v. Blake, was released in the middle of the legislative session to immediate, widespread impact.

The 28-20 Senate vote on Thursday reflected the lack of consensus among legislators in how best to proceed

The original, struck-down law made possession of controlled substances a class C felony. The amended bill that passed out of the Senate would take that down to a gross misdemeanor.

The first two times someone is arrested for possession, the bill would require them to be diverted to a treatment program. If they’re arrested for possession again, treatment would be encouraged but not required.

The bill also would allow court commissioners to help resentence people convicted under the law that was deemed unconstitutional. The bill now moves to the House, where Democrats this week introduced their own proposal to address the Supreme Court decision.

Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Lesser Included Offense

Assault, Bellingham Defense Attorney, felony, Lesser Included Jury Instruction, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

What is LESSER INCLUDED OFFENSE? What does LESSER INCLUDED OFFENSE mean? - YouTube

In State v. Coryell, the WA Supreme Court held that a defendant is entitled to a lesser included offense instruction under the Workman test when a jury could reasonably find, based on evidence submitted and the jury’s decision about whether it is credible or not, that the defendant committed only the lesser offense.

BACKGROUND FACTS

Mr. Coryell and his girlfriend Hart’Lnenicka lived together. One morning, the couple argued. Hart’Lnenicka accused Coryell of cheating on her with an ex-girlfriend. While they were talking, Coryell was playing a video game, and Hart’Lnenicka unplugged the game console, threatening to break it. Coryell took the console from Hart’Lnenicka and set it on the coffee table. At some point, Coryell pushed Hart’Lnenicka to the ground. Eventually, police responded and arrested Coryell.

The parties gave different versions of the incident. Ms. Hart’Lnenicka told police that Coryell kicked her out of the apartment, choked her, thrown her to the ground, and slammed her head into the laundry room doors. Coryell confirmed the sequence of events but denied ever grabbing Hart’Lnenicka around the neck. Ultimately, Coryell was charged with Assault Second Degree and Assault Fourth Degree.

At trial Officer Malone also stated that he saw no Petechial Hemorrhaging in the photographs presented at trial and that he observed no signs of it on Hart’Lnenicka on the day of the alleged assault. Nevertheless, the trial court declined to give the requested fourth degree assault instruction.

The jury convicted Coryell on both counts. Coryell appealed his conviction. Although the Court of Appeals affirmed the trial court’s decision denying a lesser degree instruction, the WA Supreme Court granted review.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that RCW 10.61.003 provides that where an offense consists of different degrees, “the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto.” Additionally, a defendant “may be found guilty of a lesser included offense, the commission of which is necessarily included within that with which he or she is charged in the indictment or information.”

“The reason lesser included instructions are given is to assist the jury in weighing the evidence, determining witness credibility, and deciding disputed questions of fact,” said the Court. “If the evidence permits a jury to rationally find a defendant guilty of the lesser offense, a lesser included offense instruction should be given.”

Consequently, the Court held that the trial court erred when it denied a lesser degree instruction on fourth degree assault:

“The evidence supported an inference that Coryell assaulted, but did not strangle, his girlfriend, and thus, he was entitled to a lesser degree instruction. This is consistent with the test in Workman and with the legislature’s directive in RCW 9A.04.100(2), which provides, ‘When a crime has been proven against a person, and there exists a reasonable doubt as to which of two or more degrees he or she is guilty, he or she shall be convicted only of the lowest degree.'”

Accordingly, the WA Supreme Court vacated Coryell’s conviction.

My opinion? Great decision. It’s fair to allow the defense to argue different theories of what happened based on the lack of evidence. Here, the lack of Petechial Hemorrhaging suffered by the victim raises reasonable doubt on the issue of whether she was strangled.

However, the lack of evidence does not mean she was not a victim of a lesser offense – here, Assault Fourth Degree. The defense should be allowed to argue this point and request a lesser-included jury instruction accordingly. I’m very pleased the WA Supremes finally put in writing that Assault Fourth Degree is a lesser-included offense to Assault Second Degree.

Please contact my office if you, a friend or family member are charged with Assault or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Unwitting Possession

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Strict Liability Offenses, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

I am sorry I didn't know you did that! – TheWealthySon : Success Toolbox

In State v. Blake , the WA Supreme Court held that Washington’s Drug Possession Statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct.

FACTUAL BACKGROUND

In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including the Defendant Ms. Blake.  At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Ms. Blake’s jeans.

The State charged Blake with Possession of a Controlled Substance.  At her bench trial, Blake relied on the judicially created affirmative defense of Unwitting Possession. She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest.

Blake also said she had never used methamphetamine and did not know the jeans had
drugs in the pocket. She acknowledged that the drugs had been “on her” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. Despite her defense, the trial court found that Blake had possessed methamphetamine on the day in question and found Blake guilty.

On appeal, Blake argues that requiring her to prove unwitting possession to the charged offense violates due process.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that Washington’s  felony drug possession statute – which is a essentially a strict liability statute – exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mental state to commit the crime.

“The basic drug possession statute at issue in this case states, ‘It is unlawful for any person to possess a controlled substance'”, wrote Justice McCloud. “The State need not prove any mens rea (mental state) element to secure a conviction for this crime.”

The Court reasoned that the Due Process Clause protections limit the Legislature’s police power to criminalize wholly innocent and passive non-conduct. Stated differently, a defendant’s passive and innocent non-conduct falls outside the State’s power to criminalize:

“Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the state’s police power.”  ~Justice Gordon McCloud, WA Supreme Court.

The Court further reasoned that the State’s police power is not infinite. “If it were, the result would be a police state, and the legislative branch of the government would be omnipotent,” said Justice McCloud. Finally, the Court reasoned that  the statute criminalizes innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess. “The legislature’s police power goes far, but not that far,” said the Court.

Accordingly, the Court held that RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void.

With that, the WA Supreme Court vacated Ms. Blake’s conviction.

My opinion? Excellent decision, Finally, the courts are giving teeth to the Unwitting Possession Defense. In this defense, a person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if (1) a person did not know that the substance was in their possession or (2) did not know the nature of the substance.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

Up until now, Washington’s felony drug possession statute essentially circumvented the Unwitting Possession defense.  Thankfully, the WA Supreme Court put a stop to that.
Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

Please contact my office if you, a friend or family member face Drug Offenses or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.