State v. Rhoden: Illegal 2-Step Confession Violates Miranda

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Interrogation, Jury Trial, law enforcement, Methamphetamine, Miranda, police, Self-Incrimination, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Police Engage in Illegal Interrogation Tactics and Conviction Gets Reversed — Jacksonville Criminal Lawyer Blog — April 13, 2018

In State v. Rhoden, the WA Court of Appeals Division II held that the trial court failed to suppress Mr. Rhoden’s statements made to police during an improper two- step interrogation procedure.

The facts were such that on February 26, 2013, the Pierce County Sheriff’ s Department served a search warrant on a residence in Puyallup. Five occupants of the residence, including Rhoden, were handcuffed.

Two interrogations happened. The first interview happened when Deputy Olesen questioned the handcuffed occupants in the living room of the home. Importantly, he failed to advise the suspects of their constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

For those who don’t know Miranda warnings (often abbreviated to “Miranda“, or “Mirandizing” a suspect) is the name of the formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated, in accordance with the Miranda ruling. Its purpose is to ensure the accused are aware of, and reminded of, various rights under the U.S. Constitution, and that they know they can invoke them at any time during the interview.

At any rate, Mr. Rhoden told Deputy Olesen there were drugs and a gun in the bedroom.  At that point, Deputy Olesen then escorted Rhoden to the kitchen and questioned him a second time and after finally advising Rhoden of his Miranda rights.

During the post –Miranda second interview, Deputy Olesen asked Rhoden the same questions that he had asked Rhoden in the living room before giving the Miranda warnings.

Mr. Rhoden said there was about a gram of methamphetamine located in the dresser on the left side of his bed and that he had been smoking methamphetamine for approximately the last two to three months. During a search, officers found several items in a dresser, including ( 1) small baggies containing a substance later tested and confirmed to contain methamphetamine, (2) an electronic scale, ( 3) glass smoking devices, and (4) documents containing Rhoden’ s name and the address of the residence being searched.

Rhoden was charged with one count of Unlawful Possession of a Controlled Substance (Methamphetamine) under RCW 69.50.401. Before trial, the trial court conducted a CrR 3. 5 hearing to determine the admissibility of Rhoden’ s statements to police.

The trial court held that Rhoden’ s pre-Miranda statements to police were not admissible at trial and that his post -Miranda statements to police were admissible at trial. At trial, the jury found Rhoden guilty of the charges. Mr. Rhoden appealed his conviction.

The Legal Issue

On appeal, the legal issue was whether the Miranda warnings given to Rhoden during the second interrogation were effective to inform Mr. Rhoden of his Fifth Amendment right to keep silent when he had just provided the same incriminating information in the first interrogation for which he was not given Miranda warnings.

The Rule: Missouri v. Seibert

The court looked to Missouri v. Seibert, 542 U.S. 600, 604- 06, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004) for guidance. In that case, the United States Supreme Court held that Miranda warnings were ineffective to inform the defendant of their right against self-incrimination in circumstances similar to these. As here, the warnings in Seibert were given only after the suspect had confessed during a custodial interrogation without Miranda warnings.

The Seibert Test

After reviewing Missouri v. Seibert, the court discussed the Seibert est. First, if a court determines that the use of the two- step interrogation procedure was deliberate, it then must ” determine, based on objective evidence, whether the midstream warning adequately and effectively apprised the suspect that he had a “genuine choice whether to follow up on his earlier admission.”

In making this determination, courts may consider whether any curative measures were taken to insure the suspect’ s understanding of his or her Miranda rights. Such curative measures may include a significant break in time and place between the pre- and post –Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

The court compared the Missouri v. Seibert case to Mr. Rhoden’s facts. It reasoned that similar to Rhoden’s situation, the interrogating officers in Seibert questioned the defendant without Miranda warnings yet later gave Miranda warnings in a second interview before obtaining the suspect’ s confession without a significant break in time or place and without measures to assure the suspect that her non-Mirandized statements could not be used against her in a subsequent criminal prosecution.

Applying Seibert to the Facts

The Court then applied the two-part Seibert test the facts at hand. It reasoned that here, the police deliberately used the two- step interrogation procedure. During the initial interrogation in the living room before giving Miranda rights, Olesen asked the five handcuffed suspects whether there were any drugs in the home, and Rhoden admitted that he had a small quantity of methamphetamine in his bedroom. After completing his questioning of the group in the living room, Olesen escorted Rhoden to the kitchen, read Rhoden his Miranda rights, and repeated the same questions he had asked in the living room, to which Rhoden answered consistently with his responses given before receiving the Miranda warnings.

Thus, reasoned the court, the objective evidence of “the timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of the pre and post-warning statements” all support the conclusion that the two- step interrogation procedure used here was deliberate.

The court applied the second inquiry, which examined the effectiveness of the midstream Miranda warnings. In this inquiry, the question was whether any curative measures were present, such as a significant break in time and place between the pre- and post -Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

Here, the evidence at the CrR 3. 5 hearing showed that there was not a significant break in time or place between the pre- and post -Miranda interrogation. Perhaps more importantly, the evidence also showed that Olesen did not take any additional measures to insure that Rhoden understood his Miranda rights, such as advising him that his pre –Miranda statements could not be used against him. Accordingly, the Court of Appeals held that the trial court erred by failing to suppress Rhoden’ s post –Miranda statements.

Failure to Suppress Rhoden’s Statements Was Not Harmless Error

Finally, the Court of Appeals decided that the trial court’s decision to not suppress Rhoden’s statements was not harmless error. It reasoned that constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Here,  and under the circumstances, the Court of Appeals reasoned that it could not conclude beyond a reasonable doubt that any reasonable jury would have reached the same guilty finding absent evidence of Rhoden’ s challenged admissions.

My opinion? Excellent decision. The Court of Appeals acknowledged the subtle – and unlawful – “2-Part Inquiry” of the arresting officer in this case. This technique is commonly used by law enforcement to unlawfully obtain statements from defendants and simultaneously circumvent Miranda. Good work, Court of Appeals!

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. I.B.: Shaking Your Head Means “No” Under Miranda.

Bellingham Defense Attorney, Burglary, Constitutional Rights, Dismissal, Due Process, felony, Interrogation, Juvenile, law enforcement, Miranda, police, Property Crimes, Self-Incrimination, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. I.B., the WA Court of Appeals decided a juvenile suspect’s shaking of his head in the negative after police asked him, post Miranda, if he was willing to talk was an unequivocal assertion of his Fifth Amendment rights.

Here, 15-year-old defendant I.B. was taken into custody as a suspect in a Residential Burglary crime. While being interrogated, I.B. shook his head in the negative after police asked him if he was willing to talk. Nevertheless, police continued their questioning and I.B. made inculpatory statements against his best interests. The trial court suppressed I.B.’s statements at his 3.5 Hearing and concluded that I.B’s shake of the head signaled an assertion of his right to remain silent. Later, I’B’s case was dismissed. The State appealed the trial court’s suppression.

The issue before the Court of Appeals was whether I.B.’s shaking his head in the negative after being asked if he was willing to talk was an unequivocal assertion of the right to remain silent. The court decided it was.

The court reasoned that the Fifth Amendment to the United States Constitution provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” To counteract the inherent compulsion of custodial interrogation, police must administer Miranda warnings. Miranda, 384 U.S. at 479. Miranda requires that the defendant “be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Once a suspect invokes his right to remain silent, police may not continue the interrogation or make repeated efforts to wear down the suspect.

Furthermore, the court reasoned a suspect need not verbally invoke his right to remain silent. In fact, Miranda sets a low bar for invocation of the right: “If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, 384 U.S. at 473-74 (emphasis added). However, suspects must “unambiguously” express their desire to be silent. The test as to whether a suspect’s invocation of his right to remain silent was unequivocal is an objective one, asking whether'” a reasonable police officer in the circumstances would understand the statement'” to be an invocation of Miranda rights. Once a suspect has clearly invoked the right to remain silent, police questioning must immediately cease.

Here, I.B. unequivocally invoked his right to remain silent. Nothing in the circumstances leading up to I.B.’s invocation rendered his head movement ambiguous. The police officers read I.B. his Miranda rights and I.B. understood his rights. Both officers testified they understand shaking the head side to side to communicate the word ‘No.’ This affirmative conduct unambiguously signaled LB.’s desire for the questioning to cease. Consequently, the trial court properly suppressed LB.’s custodial statements.

My opinion? Good decision. In the context of interrogations, shaking one’s head side to side means no. There’s no other reasonable interpretation.

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.

Rodriguez v. United States: Nonconsensual Dog Sniff of Car Held Unconstitutional

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Rodriguez, the United States Supreme Court held that absent reasonable suspicion, police extending a traffic stop to conduct a dog sniff violates the Constitution’s shield against unreasonable seizures.

In summary, the Supreme Court ruled that (1) the 4th Amendment does Fourth Amendment does not tolerate a dog sniff conducted after completion of a traffic stop, (2) a police stop exceeding the time needed to handle the matter for which the stop was made violated the Constitution’s shield against unreasonable seizures, (3) a seizure justified only by a police-observed traffic violation becomes unlawful if it is prolonged beyond the time reasonably required to complete the issuing of a ticket for the violation, and (4) a stop may, however, be prolonged for a dog sniff when there is independent information giving rise to an individualized suspicion that the occupants of the car are involved in a drug offense.

The 6-3 ruling is indeed a big win for the 4th Amendment.

In this case, Officer Struble, a K-9 officer, stopped the defendant Rodriguez for driving on a highway shoulder. After issuing a warning for the traffic offense Officer Strubble asked Rodriguez for permission to walk his dog around the vehicle. Rodriguez refused. Struble detained him until another police officer arrived. Struble’s dog performed a search and alerted to the presence of drugs in the vehicle. The dog found methamphetamine.

Seven or eight minutes elapsed between the time Struble issued the warning and the dog alerting to the presence of contraband.

Rodriguez faced several federal drug charges. Although he moved to suppress evidence seized from the vehicle on the basis that Officer Struble prolonged the traffic stop without reasonable suspicion in order to conduct the dog sniff search, the lower court denied Rodriguez’s motion. Eventually, the United States Supreme Court weighed in on the search and seizure issues.

The Court reasoned that a routine traffic stop is more like a brief stop under Terry v. Ohio than an arrest. Its duration is determined by the seizure’s “mission,” which is to address the traffic violation that warranted the stop and attend to related safety concerns.

Beyond determining whether to issue a traffic ticket, an officer’s investigation during a traffic stop typically includes checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance. These checks serve the same objective as enforcement of the traffic code: ensuring that vehicles on the road are operated safely and responsibly.

The court further reasoned that a dog sniff is not fairly characterized as part of the officer’s traffic mission. Also, the Court was concerned that seizing citizens for traffic stops and holding them to conduct a more intrusive search with no evidence of criminal activity beyond the mere traffic stop is unlawful: “The critical question is not whether the dog sniff occurs before or after the officer issues a ticket, but whether conducting the sniff adds time to the stop.

My opinion? Great ruling! It’s rare that the Supreme Court upholds the 4th Amendment these days. Fortunately, this favorable outcome happened because the suspect asserted his rights by refusing the dog sniff. Past rulings from the U.S. Supreme Court limit 4th Amendment protections where suspects DID NOT assert their rights. See Florida v. Bostick.

Yet here’s a case where the suspect did flex their rights. Look at the outcome! It’s a testament – a reminder, if you will – that asserting your rights makes a difference. Great case.

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.

WA Legislature Considers Banning “Palcohol”

Drug Offenses, Drug Recognition Expert, DUI, Legislation, Uncategorized, , ,
Palcohol

According to the Bellingham Herald, Washington is one of a growing number of states to try banning a new powdered alcohol product before it reaches liquor-store shelves.

Palcohol is a new powdered version of alcohol. Palcohol will be made in two different formulations, a Beverage Formulation and an Industrial Formulation. Like other powdered beverages, it must be first dissolved in water prior to consumption. One package weighs about an ounce. Powdered alcohol, it claims, could lighten the loads of hikers and airlines, as well as other consumers and sellers for whom the bulk and weight of booze are burdensome, such as refreshment-sellers who operate on islands.

Several Washington legislators, however, say Palcohol is a dangerously sneaky mechanism for getting drunk and have proposed legislation to ban it before it arrives. The House Committee on Commerce and Gaming unanimously endorsed amendments to turn SB 5292, a regulatory measure that passed the Senate unopposed, into a ban on powdered alcohol for all purposes except research.

“This is not a crafted bourbon, or a scotch, or a tequila or something that’s special,” said Rep. Jeff Holy, R-Cheney, at a public hearing this week. “Powdered alcohol is simply for the purpose of intoxication, period. You’re not crafting the finer liquors.”

If the bill becomes law, Washington would join at least six other states that have prohibited powdered alcohol, including the announcement this week by Maryland officials that alcohol distributors there have agreed to a voluntary ban on the substance. More than two dozen other states have introduced bills this year to ban powdered alcohol, which was first patented in 1972 by General Foods but has not seen widespread retail sales in the U.S.

My opinion? It seems inappropriate to speculate that snorting alcohol is going to become a raging epidemic. There’s no evidence. It also seems hypocritical to ban powdered alcohol without banning alcohol itself. Remember how Prohibition worked? Was that a great success?

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.

Marijuana / THC Breathalyzer Available Soon.

Blood Test, Boating Under the Influence, Drug Offenses, Drug Recognition Expert, DUI, marijuana, police, Search Warrant, Uncategorized, Washington State Patrol, , ,

Marijuana breathalyzer technology is here, and it's coming for drivers | fox43.com

Technology appears to be catching up.

Since Colorado and Washington legalized the recreational use of marijuana in 2014, and the growing trend to legalize pot in some capacity across the nation, there is an increased interest in addressing drugged driving.

However, today’s standardized testing marijuana intoxication is not as simple as detecting alcohol. More science and research are required. It the meantime, technology will be coming to market, such as the marijuana breathalyzer being developed by Cannabix Technologies, Inc. to give police officers an on-site tool to enhance detection of THC, the psychotropic metabolite in marijuana.

In the future, devices of this type will likely be dialed in by the forensic community and become an integral element in identifying marijuana-intoxicated drivers and in other settings, including workplaces and general consumer use, just as the alcohol breathalyzer is today.

My opinion? We saw this coming. It’s almost humorous. Typically, the law lags behind technological advances. Here, technology appears to be lagging behind the evolution of marijuana legalization! Interesting development, no? This device is another tool in the hands of law enforcement – along with Drug Recognition Experts, and search warrants for the testing of blood – for investigating DUI charges.

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. Walker: WA Supreme Court Decides Prosecutor’s Powerpoint Presentation Violates Defendant’s Right to Fair Trial

Accomplice, Constitutional Rights, Due Process, felony, Firearm, Homicide & Manslaughter, Jury Trial, Prosecutorial Misconduct, Robbery, Uncategorized, Violent Crime, Washington Supreme Court, , ,

7 Tips In Making Your Business PowerPoint Presentation Presentable | The Marketing Scope

EXCELLENT opinion. In State v. Walker, the Washington Supreme Court decided the Prosecutor improperly used a PowerPoint presentation during closing argument to convey egrigious misstatements which violated the defendant’s right to a fair trial.

At his jury trial, defendant Odies Delandus Walker was convicted as an accomplice to Murder in the First Degree, Assault in the First Degree, Robbery in the First Degree Solicitation and Conspiracy. The WA Supreme Court addressed the issue as whether those convictions must be reversed in light of the Power Point presentation the prosecuting attorney used during closing argument.

The Prosecutor’s presentation repeatedly expressed the prosecutor’s personal opinion on guilt-over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER,” and one slide showed Walker’s booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT,” which were superimposed over his face in bold red letters. The prosecutor also appealed to passion and prejudice by juxtaposing photographs of the victim with photographs of Walker and his family, some altered with the addition of inflammatory captions and superimposed text (please click the above link to the Walker opinion for a look at the specific Powerpoint slides and images).

In reaching its decision, the court reasoned that while the prosecutor is entitled to draw the jury’s attention to admitted evidence, those slides, as presented, served no legitimate purpose. Their prejudicial effect could not have been cured by a timely objection, and we cannot conclude with any confidence that Walker’s convictions were the result of a fair trial. Consistent with both long-standing precedent and our recent holding in In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012), the court reversed Walker’s convictions and remanded for a new trial.

The Court also gave some powerful language regarding how the prosecution committed serious misconduct in the portions of the PowerPoint presentation discussed above:

“We have no difficulty in holding the prosecutor’s conduct in this case was improper. Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered version of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Furthermore, RPC3.4(e) expressly prohibits a lawyer from vouching for any witness’s credibility or stating a personal opinion ‘on the guilt or innocence of the accused.’”

My opinion? Good decision. It’s very encouraging for trial attorneys to learn from these opinions. For example, we can argue Motions in Limine asking that the State’s PowerPoint presentations are disclosed in advance of closing arguments. The Walker opinion expressly endorses this approach.

Furthermore, this is the second opinion this month handed down by the WA Supremes regarding Prosecutorial Misconduct during closing arguments (please read my blog on State v. Allen). It appears the WA Supremes are on a roll.

Good opinion!

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. Huffman: Crossing the Centerline = DUI Arrest

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Terry Stop, Traffic Infractions, Uncategorized, Washington Court of Appeals, Washington State Patrol, , ,

Crossing A Double Yellow Line - i am traffic

Division I of the WA Court of Appeals decided that a single crossing of the centerline is sufficient to justify a traffic stop for a violation of RCW 46.61.100 Keep Right Except When Passing.

In State v. Huffman, defendant Sarah Huffman was arrested for driving under the influence of alcohol (DUI) after being pulled over for weaving in her lane, jerking back from the centerline and crossing the centerline on State Route 9. The two-mile section of the roadway is relatively straight, with a painted yellow line in the center that is at times a double solid line.

Police reports indicate the Trooper Eberle saw Huffman’s vehicle touch the centerline three times, each time immediately jerking back to the right side of the road. On the fourth occasion, the vehicle crossed the centerline by approximately one full tire width. Trooper Eberle did not recall any oncoming traffic at the time the vehicle crossed over the centerline. He stopped the vehicle and subsequently arrested the driver, appellant Sarah Huffman, for driving under the influence.

Huffman claimed the stop was unlawful because her single crossing of the centerline did not give rise to reasonable, articulable suspicion that she committed a traffic infraction under RCW 46.61.100. The district court agreed and granted her motion to suppress all evidence obtained after the stop. On appeal, the superior court reversed, concluding the stop was valid because Huffman committed a traffic infraction by crossing the centerline in violation of RCW 46.61.100.

Huffman appealed her case to Division I of the WA Court of Appeals. She argued that under State v. Prado, and its interpretation of RCW 46.61.140 Driving on Roadways Laned For Traffic, her momentary crossing of the centerline was not a traffic infraction and thus, there was no lawful basis for the stop.

Some background on RCW 46.61.140 and State v. Prado is necessary. In Prado, a law enforcement officer witnessed Mr. Tonelli-Prado’s vehicle cross an eight-inch white dividing the exit lane from the adjacent lane by two tire widths for one second. The Trooper pulled over Prado’s vehicle for violating RCW 46.61.140. This traffic statute addresses the safe changing of lanes (right or left or turn) and the use of a center lane, but does not mention a centerline. RCW 46.61.140(1) states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The trial court found that that Prado’s motion to suppress was not appropriate because the vehicle actually crossed the lane line, rather than merely touching the lane line. Upon review, however, the Superior Court found that under a totality of the circumstances argument, that a brief incursion not resulting in a “safety problem” was not sufficient grounds to pull over the vehicle. The Prosecutor appealed the ruling of the Superior Court to Division I Court of Appeals. On appeal, Division I upheld the Superior Court and ruled that a vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully under RCW 46.61.140(1).

In light of this background, Division I granted Huffman’s appeal to decide whether (1) State v. Prado applies and (2) whether the “as nearly as practicable” language of RCW 46.61.140 also applies to RCW 46.61.100.

The Court decided “No,” and “No.” The plain reading of the two statutes and their different objectives leads one to believe that the “nearly as practicable” qualifying language from RCW 46.61.140(1) does NOT apply to RCW 46.61.100. “Our decision in Prado is limited to its facts which involved only a violation of RCW 46.61.140, not RCW 46.61.100. Because it is undisputed that Huffman crossed the centerline, the officer was justified in stopping her to investigate a violation of RCW 46.61.100.” Based on that, the Court of Appeals vacated and reversed the trial court’s orders suppressing all evidence and dismissing the prosecution. The Court also reinstated the charges against Huffman and remanded this matter back to the district court for trial.

My opinion? The Huffman opinion is an attempt to limit the scope and applicability of Prado’s reasoning to RCW 46.61.140. Ever since Prado was decided 7 years ago, the Prosecutors and Judges in district courts have rallied against it. Prado took too much discretionary power out of the hands of police officers who follow and pull over motorists suspected of DUI. Here, the Court of Appeals “stopped the insanity” of Prado and limit its reasoning to violations of RCW 46.61.140 only.

Unfortunately, a pendular swing in one direction often gives momentum to a pendular swing in the opposite direction. More specifically, I fear that the reasoning of Huffman might be applicable to violations of RCW 46.61.670 Driving With Wheels Off Roadway. The statute says the following:

It shall be unlawful to operate or drive any vehicle or combination of vehicles over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement, gravel or crushed rock surface thereof.

Therefore – and worst-case scenario – under Huffman, a motorist who briefly/unlawfully drives on a road with one or more wheels off the roadway can be pulled over and investigated for DUI.

Is this fair?

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. Nicholas: Court Rejects “Jury Nullification” Arguments

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Nullification, Jury Trial, marijuana, Methamphetamine, Uncategorized, Washington Court of Appeals, , ,

What is Jury Nullification and Why is it Important? | Nevada CopBlock

VERY interesting opinion from the WA Court of Appeals raises and dismisses the issue of whether jury nullification has any place in jury deliberations.

In State v. Nicholas, a jury found defendant Scott Nelson guilty of Possession with Intent to Deliver Methamphetamine, Possession of Marijuana and Use of Drug Paraphernalia. Nicholas appealed the verdict and argued that the trial court errored when it allowed the Prosecutor’s jury instruction saying, it was the jury’s “duty to return a verdict of guilty.”

Some background on jury nullification is necessary. Basically, it occurs in a trial when a jury acquits a defendant, even though the jury believes the defendant is guilty of the charges. This happens when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. Nullification is a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to the juror’s sense of justice, morality, or fairness.

Here, the defendant took issue with the notion that the “To Acquit” instruction from the Prosecutor states that jurors have a duty to acquit if they found the defendant guilty of the charges. This “duty” language, said the defendant, violates his right to have the jury acquit him if they disagreed with the law itself.

However, the Court of Appeals reasoned that the State of Washington’s 1874 case Hartigan v. Territory of Washington disassembles the defendant’s argument: The Hartigan court wrote, “A juryman is just as much bound by the laws of this territory as any other citizen. He acquires no right to disregard that law simply because he has taken an oath as juryman to aid in its administration.”

The court also reasoned, “Judges must declare the law, while jurors must swear to faithfully apply that law.” Their oath to faithfully apply the law is under RCW 4.44.260, which states the following:

When the jury has been selected, an oath or affirmation shall be administered to the jurors, in substance that they and each ofthem, will well, and truly try, the matter in issue between the plaintiff and defendant, anda true verdict give, according to the law and evidence as given them on the trial.

Consequently, the Court reasoned that the use of the word “duty” is consistent with the oath requirement that the jury give a true verdict, and that it does so according to the law and evidence.

Finally, the Court discussed the horrors surrounding the verdicts of defendants accused of killing and maiming individuals because of racial hatred, and that these jurors exercised jury nullification even though the evidence against the defendants was strong. The court describes how the murder trials involving the death of African American Emmett Till and NAACP leader Medgar Evers were horrible examples of jury nullification gone wrong.

The Court of Appeals concluded with a strong, scathing remark on jury nullification:

A fundamental value of America is the rule of law rather than rule by men. The Washington populace justifiably does not want activist judges who base decisions upon political views or moral judgments. The same should hold true for jurors. Jury nullification destroys the rule of law upon which America is based. As the 1992 Los Angeles riots evidence, nullification engenders anarchy.

My opinion? I see the pros and cons of this decision. On the one hand, I agree with the court that jury nullification can lead to horrible results and miscarriages of justice. On the other hand, although jury nullification is by no means a Constitutional right, it is an inherent feature of the use of jury trial verdicts. Sometimes, the law is simply unjust, misapplied by Prosecutors or simply out-of-touch with today’s reality.

For the most part, jury nullification is sometimes applied by juries yet rarely spoken about in open court. It is  certainly not supported by judges. 99.9% of all judges will refuse to formally instruct juries that the may “nullify” and acquit a defendant based on their disagreements with the law itself.

Indeed, judges constantly tell juries they must apply the law, not disagree with it! Judges know that the power to acquit a defendant does not require any instruction from the judge telling the jury that it may do so. In other words, although courts recognize that jury nullification occurs in practice, they will not promote it nor educate jurors about nullification.

Again, interesting opinion.

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. Lawson: Burglary & Voyeurism

Assault, Burglary, Constitutional Rights, Evidence, felony, Privacy, Probable Cause, Uncategorized, voyeurism, Washington Court of Appeals, , ,

How To Tell Who's In The Toilet Stall Next To You Without Peeking At Their Shoes - Allan Ishac

In State v. Lawson, the WA Court of Appeals supported the defendant’s convictions for both Voyeurism and Burglary. Here, the defendant was prosecuted for sneaking inside the women’s restrooms at Harrison Medical Center and Barnes & Noble and spying on different females from bathroom stalls as they entered and used the restroom facilities.

The Prosecution charged the defendant with one count of Burglary First Degree, two counts of Burglary Second Degree, one count of Assault Second Degree, one count of Voyeurism, and two counts of Criminal Attempt of Voyeurism. The jury returned guilty verdicts on each charge except for Assault Second Degree. The defendant appealed the jury verdicts on the argument that the State failed to introduce sufficient evidence to prove the Barnes and Noble voyeurism charge and each of the Burglary charges.

However, the Court of Appeals disagreed. Under statute, a person commits the crime of Voyeurism if he knowingly views another person in a place where that person would have a reasonable expectation of privacy. Here, a person has a reasonable expectation of privacy inside a restroom. The Court reasoned it is undisputed that the defendant viewed women by peeking over the restroom stall door in a place that was clearly delineated for use by women only. It stated, “Although the women’ s restroom was inside an otherwise public building and while a person might not usually disrobe inside the common area, one expects privacy in a restroom.”

 The Court also rejected the defendant’s argument that the evidence is insufficient to support Burglary convictions because voyeurism is not “a crime against person or property,” which is a prerequisite to a Burglary conviction. Instead, the Court reasoned that voyeurism is a crime against a person and, therefore, can serve as the predicate crime for Burglary Second Degree. The Court further reasoned there was sufficient evidence to conclude that the defendant was guilty of the Burglaries because he entered the women’ s restroom with the intent to commit a crime against a person or property.

With that, the Court affirmed the defendant’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.

State v. Quaale: WA Supreme Court Upholds WA Court of Appeals & Grants Mistrial Due To Trooper’s Opinion Testimony

Constitutional Rights, Drug Recognition Expert, Due Process, DUI, Evidence, Jury Trial, law enforcement, misdemeanor, police, Terry Stop, Uncategorized, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Lay Witnesses and Opinion Testimony: Admissible?

Excellent opinion from the WA Supreme Court. In State v. Quaale, the WA Supreme Court decided that a Washington State Trooper’s opinion testimony regarding the defendant’s sobriety violated the defendant’s rights at trial.

Trooper Stone pulled the defendant Ryan Quaale over for Eluding and DUI. Trooper Stone then performed the Horizontal Gaze Nystagmus Test (HGN test) on Quaale.

Some explanation of the HGN test is necessary. The HGN test is a routinely used field sobriety test in which the administrator tells the subject to follow a pen or fingertip with his or her eyes as the administrator moves the stimulus from side to side. After consuming alcohol, a person will have difficulty smoothly following the stimulus; the person’s eyes will jerk or bounce as they move from side to side.

For those who don’t know, “Nystagmus” is this very involuntary oscillation of the eyeballs – the jerking – which results from the body’s attempt to maintain orientation and balance. HGN is the inability of the eyes to maintain visual fixation as they turn from side to side or move from center focus to the point of maximum deviation at the side.

Here, Trooper Stone testified that in his opinion, the HGN test is very important to determining impairment because, unlike the walk the line test, which a person can practice, the HGN test measures an involuntary reflex. Trooper Stone did not perform any other sobriety tests on Quaale in the field.

During the HGN test, Trooper Stone observed Quaale’s eyes bounce and have difficulty tracking the stimulus. Trooper Stone placed Quaale under arrest for DUI, Reckless Driving, and Attempting to Elude. At the station, Trooper Stone informed Quaale of the implied consent warnings for a breath test. Quaale refused to take the test. Quaale was charged with Attempting to Elude a police vehicle and with Felony DUI. The DUI was charged as a felony because Quaale had been previously convicted of Vehicular Homicide While Under the Influence. RCW 46.61.502(6)(b)(i).

Quaale was tried twice. At the first trial, the jury convicted him of attempting to elude but could not agree on a verdict for the DUI charge. During a second trial on the DUI charge, the State concluded its direct examination of Trooper Stone with the following questions:

Q. In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale’s ability to operate a motor vehicle was impaired? [Defendant’s objection that the question goes to the ultimate issue is overruled]
Q …. Did you form an opinion?
A. Absolutely. There was no doubt he was impaired.

The WA Supremes reasoned that Trooper Stone’s testimony that he had “no doubt” the defendant was impaired was an improper opinion on the defendant’s guilt and therefore inadmissible. Trooper Stone based his opinion solely on a HGN test, which can indicate physical signs consistent with alcohol consumption. The test, however, cannot establish impairment by itself, and testimony to the contrary violates the limitations imposed by the Supreme Court’s decision in State v. Baity.

An explanation of State v. Baity is necessary. In Baity, the WA Supreme Court considered whether drug recognition protocol employed by police officers to detect behavior associated with certain drugs constituted novel scientific evidence generally accepted in the scientific community, satisfying the Frye test for admissibility of expert testimony.  Police officers trained to use this protocol are often referred to as Drug Recognition Experts (DREs).

DREs use a 12-step procedure to classify behavioral patterns associated with seven categories of drugs. Officers employ the HGN test as one ofthe 12 steps. In Baity, the Court analyzed whether the HGN test satisfied Frye when used for drug detection. The Court held that it did. It reasoned that the underlying scientific basis of the test-an intoxicated person will exhibit nystagmus was undisputed. T

he Court also noted that officers perform the test in the same way whether the officer tests for alcohol or drug impairment and that the officer also looks for the same result: involuntary jerking in the driver’s eyes. Thus, the Court’s analysis of the HGN test in the DUI drug detection context, as discussed in Baity, applies equally to the DUI alcohol detection context in this case.

Although the Baity Court heard testimony on the HGN test admissible as evidence that a person was intoxicated on drugs, the Court also placed limits on that testimony because the HGN test merely shows physical signs consistent with ingestion of intoxicants. The Court said that an officer may not testify in a manner that casts an “aura of scientific certainty to the testimony.”

The officer also cannot predict the specific level of  drugs present in a suspect.  Furthermore, the Baity court held that a DRE officer, properly qualified, could express an opinion that a suspect’s behavior and physical attributes are consistent or inconsistent with those behaviors and physical signs associated with certain categories of drugs.

With that background, the Quaale Court reasoned that the Trooper’s testimony that Quaale was “impaired” parroted the legal standard contained in the jury instruction definition for “under the influence.” The word “impair” means to “diminish in quantity, value, excellence, or strength.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1131 (2002).

Thus, the trooper concluded that alcohol diminished Quaale in such an appreciable degree that the HGN test could detect Quaale’s impairment. Because the Trooper’s inadmissible testimony went to the ultimate factual issue-the core issue of Quaale’s impairment to drive-the testimony amounted to an improper opinion on guilt.

With that, the WA Supremes affirmed the Court of Appeals, reversed the judgment and sentence, and remanded Mr. Quaale’s case for a new trial.

Great 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.