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State v. Hammock: Home-Made Guns Are Still Firearms

Assault, Constitutional Rights, Firearm, Homicide & Manslaughter, Jury Trial, Uncategorized, Washington Court of Appeals, , ,

Pin on Small homemade wepons + gun stuff

In State v. Hammock, the WA Court of Appeals Division II decided that a hollowed-out bolt, in which a bullet is inserted, and when used with a hammer to strike the bullet,  IS a firearm.

After an extended period of using drugs and arguing with Mr. Ford, defendant Hammock handed his girlfriend, Ms. McKee, a .22-caliber bullet, a hollowed-out bolt with a hexagonal head, and a ball peen hammer, and told her to shoot Ford.  Hammock had previously used the device to discharge a bullet.

Hammock inserted the shell into the head end of the bolt.  McKee placed the  non-head end of the  bolt against Ford’s head, struck the bullet with the ball peen hammer, discharged the bullet into Ford’s head.  Ford did not die immediately.

The following details are gruesome.  About 20 minutes later, Hammock jumped over the bed without warning  and repeatedly hit Ford  in the head  with a hammer.  Ford remained conscious for several more hours.  Later Hammock exited the room and returned with a metal object similar to a meat cleaver and struck Ford in the head two or three times.

Ford remained alive and conscious, so Hammock knotted an extension cord around Ford’s neck and placed a white plastic bag over Ford’s head.  Hammock also struck Ford again with the metal object once or twice.  Ford ultimately died from a gunshot wound to the head, blunt force impacts to the head, and ligature strangulation due to an extension cord knotted around his neck.

The State charged Hammock First Degree Murder, and numerous Drug Offenses.  A forensic scientist with the Washington State Patrol Crime Laboratory testified that the .22-caliber bullet is a “rimfire” cartridge, meaning that its primer, the explosive, is around the rim of the cartridge. The primer ignites the gunpowder that provides the gas that propels the bullet.  The scientist was able to discharge a bullet from the bolt by striking the rim of the cartridge with a ball peen hammer.  The jury found Hammock guilty of all charges, including possession of a deadly weapon.

Court of Appeals reasoned that the bolt, hammer, and bullet, when considered together, constitute an instrument of offensive combat.  Hammock inserted the bullet into the bolt, handed it back to McKee, and told her to shoot Ford.  McKee put the bolt up to Ford’s head, struck it with a hammer, and discharged the bullet into Ford’s head.  Ford died partly from this gunshot wound to the head.

This constitutes an “instrument” used to injure or kill someone, reasoned the Court.  Additionally, the Court held that the bolt system meets the definition of “device” as well under former RCW 9.41.010(1).  Under Webster’s Dictionary, a “device” is “something that is formed or formulated by design and usage.

Consequently, the Court upheld Hammocks guilty verdict.

My opinion?  As I said above, I’m dedicating this post to NRA members, gun enthusiasts, and 2nd Amendment buffs.  Although I’m clearly NOT providing legal advice – I cannot do that over the internet – this bit of public information should put gun enthusiasts on pause.  Home-made guns are still firearms; even if the moving parts are separated from each other.  Period.

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.

State v. Dow: Corpus Delicti vs. RCW 10.58.03

Constitutional Rights, Corpus Delicti, felony, Jury Trial, Rape, Sex Crimes, Uncategorized, Washington Supreme Court, , ,

Important Facts about Corpus Delicti

In State v. Dow, the WA Supreme Court held that RCW 10.58.035 does NOT change the corpus delicti rule that the State must prove every element of an alleged crime by evidence independent of the defendant’s statement.

 Defendant Mr. Dow was charged with with first degree child molestation.  The victim was a three year old female, and too young to testify.  Consequently, her statements to others about the alleged offense were inadmissible.  No persons other than Dow and the child were present at the time of the alleged offense.  During a recorded police interview, Dow made statements regarding the events surrounding the alleged molestation.

The trial court found these statements to be exculpatory and not an admission.  The State sought to introduce Dow’s statements as substantive evidence that he committed the crime charged.  Dow moved to exclude these statements, arguing they were inadmissible for lack of  corpus delicti.  The trial court agreed.  Dow’s case was dismissed.  The State appealed.  The case found its way to the Supreme Court.

Some background is necessary: the corpus delicti doctrine generally is a principle that tests the sufficiency or adequacy of evidence, other than a defendant’s confession, to corroborate the confession.  The purpose of the rule is to ensure that other evidence supports the defendant’s statement and satisfies the elements of the crime.  Where no other evidence exists to support the confession, a conviction cannot be supported solely by a confession.  The purpose of the corpus delicti rule is to prevent defendants from being unjustly convicted based on confessions alone.  Historically, courts have grounded the rule in judicial mistrust of confessions.

Along comes RCW 10.58.035. It allows a statement to be admitted into evidence if there is substantial independent evidence establishing the trustworthiness of the statement.   The following factors determine whether the statement is trustworthy:

(a)  Whether there is any evidence corroborating or contradicting the facts set out in the statement, including the elements of the offense;

(b)  The character of the witness reporting the statement and the number of witnesses to the statement;

(c)  Whether a record of the statement was made and the timing of the making of the record in relation to the making of the statement; and/or

(d)  The relationship between the witness and the defendant.

Here, the WA Supremes reasoned that even if the statements are admissible, no other evidence exists to establish the corpus delicti independent of Dow’s statement. Further, corpus delicti cases have always required sufficient evidence independent of a defendant’s confession to support a conviction.  RCW 10.58.035 does nothing to change this requirement. The State concedes it lacked evidence.  Indeed, the only evidence the State purported to have is Dow’s statement, which is insufficient under any standard.

Consequently, the WA Supremes upheld Dow’s dismissal.

My opinion?  I like the decision.  The WA Supremes dutifully followed corpus delicti and held people shouldn’t be charged with crimes unless evidence exists.  I fear, however, that even though the Court did not allow RCW 10.58.035 to swallow the corpus delicti rule, such decisions may come few and farther in between.  The statute was MADE to chip away at corpus delicti.  Period.  Perhaps it didn’t apply to Dow’s case because his statement was the ONLY evidence the State had.  Future defendants in future cases, however, might not be so lucky.

My prediction?  Future courts may find that if a scintilla of evidence beyond the defendant’s statement exists, then the statute kicks into effect and does away with corpus delicti.  Keep your eyes peeled . . .

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.

Bellingham Police Suffer Cuts To Salaries, Hours

Bellingham, Bellingham Defense Attorney, law enforcement, police, Whatcom County Criminal Defense, , ,

Salt Lake City Council lifts hiring freeze on SLCPD

A citywide hiring freeze has spurred Bellingham police to call on the City Council and the mayor, asking them to replenish the number of officers on duty.  However, it appears Mayor Pike is not as receptive as the Police Guild hopes.

The amount of reported crimes went down 4 percent last year, Pike said. Because the Police Department has 2.5 percent fewer deputies, the overall workload for city police is actually lower now than it was a year ago, he said.

Pike also said the city does have money in reserves, but it would not be prudent for the city to go ahead and spend all of it.

“No, we don’t have the resources to just, on an ad hoc basis, add costs to the city,” Pike said. “There is a process that has been in play for a long time, which the guild is a part of. This is, in my view, an end-run to that process: to get special treatment, which I don’t think is appropriate.”

My opinion?  I’m impressed that Mayor Pike sees the reality of the situation.  Crime is down.  Why hire more police?  There’s plenty of police agencies in Whatcom County.  Let’s not forget, the Sheriff’s Office and the Border Patrol; along with Everson, Ferndale, Sumas, and Blaine Police Departments.

If it ain’t broke, then don’t try to fix it . . .

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.

Whatcom County Jail Gets Record Number of Inmates

Animal Abuse, Assault, Bellingham, Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Domestic Violence, Drug Offenses, Due Process, DUI, felony, Firearm, Homicide & Manslaughter, Jail, law enforcement, marijuana, misdemeanor, police, Pretrial Investigations, Probable Cause, Property Crimes, Retail Theft, Search and Seizure, Search Warrant, Sentencing, Sex Crimes, Speedy Trial & Continuances, Terry Stop, Theft, Washington State Patrol, Whatcom County Criminal Defense, , ,

COVID-19 infections hit record high in California prisons | CalMatters

Whatcom County Jail’s population hit a record high over Presidents Day weekend and since then, law enforcement agencies have been booking fewer people, to ease the crowding.
The jail’s population reached 323 inmates – its operational capacity should be 212 inmates -the weekend of Feb. 13-15, causing the jail to run out of temporary beds and come close to running out of clothes, sheets and other resources. From Feb. 1 to Feb. 16, an average of 26 people were booked into the jail each day.

Bellingham police have been citing and releasing some people arrested on misdemeanor, and booking and then immediately releasing others.  An officer might take some people to jail to have their photos and fingerprints taken, then have the jail release them.

My opinion?  I’ll state the obvious: the criminal justice system in Whatcom County has reached peaked capacity.  Jails are overcrowded.  Trial calendars are filled.   Trust me, I know.

The easy solution?  Hire an additional judge, build additional courts, and build another jail.  Unfortunately, that’s not going to happen any time soon.   Put simply, The County lacks resources to build jails and/or hire more court staff.  This is not due to sloppy spending on the part of the County.  The Whatcom Superior Court has already eliminated numerous services due to the decrease in revenues.  That said, the likelihood of obtaining more revenue to hire another judge and/or construct another jail is slim to none.

The harder solution – and probably the more criticized; yet WORKABLE solution – is for the Prosecutor’s Office to negotiate more cases to a favorable resolution.  They’re a trial-happy bunch, and unnecessarily so.  Not every case must be brought to trial.  Justice happens when all parties leave the courtroom satisfied with the result.

At any rate, overcrowded jails are symptomatic of larger problems.  The County judiciary is burning the candlestick at both ends.  We’re seeing a decrease in judicial revenues and an increase in inmates.  The state of affairs certainly is alarming.  Why now, and why all of the sudden?

A tough nut to crack.

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.

State v. Harris: A Defendant May Argue Gant On Appeal Even Though It Was Not Argued At Trial.

Constitutional Rights, felony, Firearm, Jury Trial, law enforcement, marijuana, misdemeanor, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, United States Supreme Court, Washington Court of Appeals, , ,

The Courts and the Constitution Arizona v Gant

In State v. Harris, the  WA Court of Appeals held that a defendant who did not bring a suppression motion prior to trial, may assert a claim under Arizona v. Gant  for the first time on appeal.

Defendant Stuart J. Harris, Jr. appealed his conviction for First Degree Unlawful Possession of a Firearm.  He argued  sufficiency of the evidence,  additional evidentiary error, and prosecutorial misconduct.   While this appeal was pending, the United States Supreme Court decided Arizona v. Gant, which deals with the scope of a car search pursuant to the arrest of its driver.  The Court of Appeals Division II allowed the parties to provide supplemental briefs on the Gant issue.

For those who don’t know, Gant rejected the reading of New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d (1981), that predominated in the lower courts, namely, that the Fourth Amendment allows a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.

In departing from Belton, the Gant Court held instead that police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.  Gant, 129 S. Ct. at 1723.3

Here, the Court of Appeals reasoned the facts in Gant were similar to those here.  Harris was not within reaching distance of the passenger compartment of the car at the time of its search, and there was no reason to believe that the car contained evidence related to the offense for which he was arrested (driving with a suspended license). Therefore, absent other legal support for the search, the officer’s search of  the car was unlawful.

Furthermore, Gant applies retroactively because “A party should be allowed to take advantage of a decision rendered during the pendency of his case, even if he had not reserved the point decided, if the decision could not have reasonably been anticipated.”  State v. Harris at 6-7, quoting Judge Posner of the Seventh Circuit.

My opinion?  I’m a HUGE fan of the Arizona v. Gant opinion (please see my Dec. 24, 2009 blog), and by extension, I’m a HUGE fan of this opinion. Generally, United States Supreme Court decisions that announce new constitutional rules governing criminal prosecutions apply retroactively to all criminal cases not yet final on appeal.  I’m happy the Court of Appeals stuck to the law; and supported Gant, to boot.

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.

State v. A.N.J: WA Supremes Withdraw Guilty Plea Due To Ineffective Assistance of Counsel

Constitutional Rights, Ineffective Assistance, Sentencing, Washington Supreme Court, , ,

Blog | Speaker Law

In State v. A.N.J., the WA Supreme Court held that Defendant A.N.J’s court appointed counsel was ineffective because counsel failed to do an adequate investigation, failed to consult with experts, failed to fully inform him of the consequences of his plea, and failed to form a confidential relationship with him independent of his parents.

In 2004, when A.N.J. was 12 years old, he pleaded guilty to first degree child molestation.  Almost immediately, he moved to withdraw his plea upon realizing (1) his juvenile sex offense criminal history would remain on his record once he was an adult, (2) that he might have to register as a sex offender for the rest of his life, (3) that he would have to notify his school, and (4) that he would probably be shadowed by an adult while he was at the school.  He argued that under the facts of this case, his plea was not knowing, voluntary and intelligent, and that he should have been allowed to withdraw it.

The court record showed that A.N.J.’s defense counsel spent as little as 55 minutes with A.N.J. before the plea hearing, did no independent investigation, did not carefully review the plea agreement, and consulted with no experts.

Consequently, the WA Supremes reasoned that court appointed counsel’s representation fell below the objective standard guaranteed by the constitution.  A.N.J. was also misled into believing his criminal record of the sex offense could be expunged in the future.

My opinion?  Justice Chamber’s introduction in this opinion says it all:

“While the vast majority of public defenders do sterling and impressive work, in some times and places, inadequate funding and troublesome limits on indigent counsel have made the promise of effective assistance of counsel more myth than fact, more illusion than substance.

Public funds for appointed counsel are sometimes woefully inadequate, and public contracts have imposed statistically impossible case loads on public defenders and require that the costs of experts, investigators, and conflict counsel must come out of the defenders’ own already inadequate compensation.”  ~Justice Chambers, State v. A.N.J.

Public defenders have tough jobs.  Period.  Many of my colleagues are public defenders.  Trust me, they’re on the battlefield every day; in the trenches, trying cases to the best of their abilities.  Unfortunately, glutted trial calendars and lack of resources stretch time/energy/resources excruciatingly thin. I only hope this opinion gives all criminal defense attorneys, and not only public defenders, some insights into how to avoid ineffective assistance of counsel.

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.

State v. Erickson: Probation Officers Have Too Much Power

Assault, Bench Warrant, Constitutional Rights, Drug Offenses, law enforcement, misdemeanor, police, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

NY Probation Violation Hearing Lawyer - E. Stewart Jones Hacker Murhpy

In State v. Erickson, the WA Supreme Court decided a court may issue a bench warrant without a formal finding of probable cause on the underlying allegations after the defendant fails to appear at a probation violation hearing.

Anthony Erickson received probation after he was convicted of fourth degree assault.  His probation officer alleged Erickson violated the terms of his probation.  Erickson was issued a summons ordering him to appear at a probation violation hearing.  When Erickson failed to appear, the court issued a bench warrant for his arrest.  Erickson was subsequently arrested.  A strip search at the jail revealed he possessed cocaine.

The WA Supremes reasoned that because Erickson failed to notify the court of any change of address, the judge in the lower court had a “well-founded suspicion” that Erickson had violated that condition of his release.  Consequently, the judge had authority to issue the bench warrant based on that alone.

My opinion?  It’s unbelievable that the allegations – and that’s all they are, mere allegations – of a probation officer are upheld as stone-cold truth by judges if a defendant fails to show up for a hearing.  It’s unbelievable that judges can now issue bench warrants because a defendant failed to notify their probation officer of an address change.  It’s unbelievable that defendants can be taken into custody, strip searched, and arrested because they failed to notify their probation officer of an address change.

This case highlights how unfairly the gears of the criminal justice system grind away at individual rights.  Let’s hope this gets appealed to a higher 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.

State v. Drum: Good Decision Regarding Stipulated Evidence At Drug Court Trials

Burglary, Drug Court, Evidence, felony, Washington Supreme Court, , ,

What's good 'evidence-based' practice for classrooms? We asked the teachers, here's what they said | EduResearch Matters

In State v. Drum, the WA Supreme Court held a trial court may find a defendant NOT GUILTY if it determines that the stipulated evidence does not establish all of the elements of a crime beyond all reasonable doubt.

Patrick Drum entered into a contract to participate in drug court, which provided for the eventual dismissal of a Residential Burglary charge if  Drum  successfully completed a substance abuse treatment program.  The contract required Drum to stipulate that the facts set forth in the investigation reports, witness statements, and laboratory tests were true and sufficient to support a finding of guilt.

After waiting in custody for 42 days for a bed to open up at a treatment facility, Drum requested to leave the drug court program.  He had a bench trial.  The judge found him guilty based on the evidence that was stipulated when Mr. Drum entered the contract.

Here, the WA Supremes reasoned that by entering a drug court contract, a defendant is NOT giving up his right to an independent finding of guilt beyond a reasonable doubt.  A trial court still has the authority to find the defendant not guilty if it determines that the stipulated evidence does not establish all elements of the crime beyond a reasonable doubt.  Finally, if a trial court independently reviews the evidence and makes findings, a stipulated drug court agreement is NOT the equivalent of a guilty plea.

My opinion?  EXCELLENT DECISION.

For those who don’t know, Drug Courts are programs that divert nonviolent, drug-related offenders into intensive treatment programs with the  goal of encouraging offenders  into a productive, drug-free lifestyle.  In general, offenders participate in required drug treatment and counseling, find work, meet with corrections officers, attend regular visits with a judge, and meet any other conditions set by the court.  Personal involvement by the drug court judge, prosecutor, defense attorney, and treatment providers is cited as the key to the success of drug courts.

Drug Court is a privilege.  It’s difficult to get into.  A defendant must be evaluated and found a good candidate by the evaluator, prosecutor and judge.  To gain entry, defendant must also stipulate – essentially, agree – to the truth of the evidence alleged against them in the police reports.  Worst-case scenario; if defendants either quit or are kicked out of Drug Court, then they have already waived their right to a jury trial, waived their right to challenge the evidence through direct/cross examination of witnesses, and essentially waived their presumption of innocence.  Ouch.

State v. Drum gives judges broad discretion to review the truth and veracity of the “stipulated evidence.”  In other words, judges may consider whether the State can prove their case beyond a reasonable doubt.  Best-case scenario for a defendant, it appears they have a chance to get a case acquitted by a judge upon leaving Drug Court.

Practically speaking, the likelihood of an acquittal is slim.  Drug Courts are highly political venues.   Indeed, look at how the WA Supreme Justices voted, it was a SLIM 5-4 majority.

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.

Washington State Felons Should Have Voting Rights, Federal Court Rules

Constitutional Rights, felony, Race & Law, Theft, , ,

Opinion | Restoring Voting Rights for Felons - The New York Times

Here’s some good news.  On Martin Luther King Jr. day, no less.

A federal appeals court tossed out Washington’s law banning incarcerated felons from voting, finding the state’s criminal-justice system is “infected” with racial discrimination.

Muhammad Shabazz Farrakhan was serving a three-year sentence at the Washington State Penitentiary in Walla Walla for a series of felony-theft convictions. Ultimately, five other inmates, all members of racial minority groups, joined as plaintiffs.

The plaintiffs’ brought studies and social-science data which showed that minorities in Washington are stopped, arrested and convicted in such disproportionate rates that the ban on voting by incarcerated felons is inherently discriminatory.

The federal court agreed.  The decision, written by Judge A. Wallace Tashima, said the studies “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system — systemic disparities which cannot be explained by ‘factors independent of race.’ ”

Blacks are 70 percent more likely — and Latinos and Native Americans 50 percent more likely — than whites to be searched in traffic stops.  The research also showed that blacks are nine times more likely to be incarcerated than whites, despite the fact that the ratio of arrests for violent crime among blacks and whites is less than four-to-one. One result of that: 25 percent of black men in Washington are disenfranchised from voting.

My opinion?  I’m overjoyed with the decision.  Granted, convicted felons should face appropriate consequences if found guilty of committing crimes.  However, the Washington law stripping them of voting rights was simply Draconian.

Eventually, the convicts will serve their sentence and return to society.  Studies show that voting by incarcerated felons is the best tool to re-integrate them into society.  Why deny them the right to vote?  What good does that do?

The decision is a step in the right direction.  Let them vote.

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.

Program That Gives Suspended Drivers a Second Chance Finds Success

Department of Licensing, DUI, Jail, misdemeanor, Uncategorized, , ,

13 Ways You Could Lose Your License Without Getting Behind the Wheel - ValuePenguin

Good news!  Suspended drivers can earn a fresh start, and taxpayers save money in the bargain.

A diversion program offered to people caught driving with a suspended license is saving taxpayers thousands of dollars and helping people earn back their driver’s licenses, according to officials with the Snohomish County Prosecuting Attorney’s Office.

It works like this: eligible defendants are sent a letter advising them that they have three months to get their driver’s license reinstated by the state Department of Licensing. If they do, the prosecutor’s office agrees not to file the misdemeanor charge.

The program is saving the costs associated with prosecuting the cases.  It also generates revenue.  According to the article, people are paying thousands of dollars in fines to get their licenses back.  Indeed, one man paid more than $10,000 in back child support to get his driver’s license reinstated.

My Opinion?  It’s about time.  Driving While License Suspended (DWLS) charges are a patent WASTE OF TIME to charge.  Yes, DWLS charges are a crime.  Yes, defendants risk serving jail time if their criminal history substantiates it.  But c’mon . . . do we really want to incarcerate people for this?

In my experience, the only reasons why people’s licenses get suspended is because they failed to pay traffic tickets, owe child support, were caught driving without insurance or haven’t paid costs associated with a traffic accident.  Also, it costs us taxpayers approximately $70 a day to house inmates in county jail.  That cost goes up exponentially when the prosecutor’s office gets involved.  Again, WASTE OF TIME and WASTE OF MONEY.

Congrats to Snohomish County.  Perhaps other counties will follow suit.

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.