Category Archives: Assault

Cross-Racial Identification

Frontiers | The Own-Race Bias for Face Recognition in a Multiracial Society

In State v. Butler, the WA Supreme Court upheld a defendant’s conviction for assault and held there was insufficient evidence supporting a jury instruction for false cross-racial identification.

FACTUAL BACKGROUND

Mr. Butler, a Black man, was convicted of assaulting two security officers in separate incidents at two Seattle light rail stations. Both assaults were caught on camera and the assailant appeared to be the same person in both. One of the victims, who appears to be white, identified Butler as his assailant at trial. The victim had not made an out-of-court identification. The victim did not identify Butler until the CrR 3.5 hearing and then at trial.

Naturally, the primary issue at trial was the identity of the assailant. The State sought to prove Butler was the person in the videos. The State argued that Butler was of the same build and race as the assailant. He also wore the same clothes and carried the same items—including the same shoes, skateboard, and backpack.

Butler asked the trial court to instruct the jury according to the pattern jury instruction on eyewitness identifications. It includes optional bracketed language that the jury may consider the witness’s familiarity or lack of familiarity with people of the perceived race or ethnicity of the perpetrator of the act.  The trial court agreed to give the pattern jury instruction, but declined to include that optional language. Mr. Butler was found guilty at trial.

On appeal, Butler argued that the trial court denied his right to present a defense by failing to give the cross-racial identification portion of the pattern instruction. The Court of Appeals concluded that the trial court did not abuse its discretion because there was insufficient evidence supporting the instruction, and it upheld Butler’s conviction. The WA Supreme Court addressed the issue and granted review.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court acknowledges racial bias is pervasive in our society.  However, it declined the chance to adopt a model jury instruction on cross-racial eyewitness identifications or to require that instruction be given whenever the defendant requests it. The Court’s review was strictly limited to considering whether the optional language on cross-racial identification should have been given.

Although Butler argued for a violation of his Due Process right to present a defense, S.Ct. concludes Butler was able to attack AV’s credibility and pursue his defense on the unreliability of the identification with the instructions that were given.

There was no abuse of discretion in denying the requested language in the instruction because the court reasonably concluded there was not sufficient evidence in the record supporting such a jury instruction.

“We leave for another day broader questions about what steps courts should take to mitigate the significant risk that eyewitness identifications are unreliable in the cross-racial context.” ~WA Supreme Court.

CONCURRING OPINIONS – CHIEF JUSTICE STEVEN GONZALEZ & JUSTICE MARY YU

Chief Justice Steven Gonzalez wrote a separate concurring opinion. He reluctantly concurred only because Butler did not lay a foundation for the instruction he requested. However, Justice Gonzalez also took the opportunity to offer a deeper perspective on the negative impacts of improper identification of defendants.

“Mistaken eyewitness identifications have resulted in many innocent people being wrongfully convicted in our nation . . . The particular weaknesses of cross-racial identifications have been well known and well documented for decades.” ~WA Supreme Court Chief Justice Steven Gonzalez

Justice Gonzalez urged our Washington Pattern Jury Instructions Committee to craft an instruction that reflects what we have learned about the weaknesses of cross-racial identification.

Justice Mary Yu also wrote a concurring separate opinion. Similar to Justice Gonzalez, she recommended that Washington adopt an instruction that fully and accurately reflects the proven weaknesses of cross-racial identification.

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.

Hands Are Not An “Instrument or Thing” Used to Prove Assault Third Degree

Fold Your Hands — Coffee + Crumbs

In State v. Altman, the WA Court of Appeals reversed the Defendant’s conviction for Assault Third Degree because there was no evidence that the defendant used anything other than his hands to assault the victim.

FACTUAL BACKGROUND

The victim A.W. alleged that she was sexually assaulted by Mr. Altman. The State charged Altman with second degree assault with sexual motivation, alleging he intentionally assaulted A.W. by strangulation or suffocation. Alternatively, the State charged Altman with third degree assault with sexual motivation for causing bodily harm to A.W. by means of a weapon or other instrument or thing likely to produce bodily harm. The State also charged Altman with second degree rape and unlawful imprisonment with sexual motivation

During closing arguments, the State argued that Altman’s hands were a “thing” used to
support a lesser alternative charge of third degree assault:

“I submit to you the State is not saying that there was a weapon used in this case. I submit to you that we’re not saying there was an instrument that was used in this case. However, it also says it can be from a thing likely to produce bodily harm. And I submit to you, ladies and gentlemen, a thing can be anything.” State Prosecutor.

The jury found Altman not guilty of second degree rape, second degree assault by
strangulation with sexual motivation, and unlawful imprisonment with sexual motivation.
However, the jury found Altman guilty of a lesser alternative charge of third degree assault. Mr. Altman appealed on arguments that the evidence was insufficient to show that he assaulted A.W. with an “instrument or thing.”

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began with a discussion of the elements required to prove Assault Third Degree. In short, a person is guilty if he “causes bodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm.”

“The issue here is whether a hand meets the statutory requirement of “other instrument or thing likely to produce bodily harm,” said the Court. The Court reviewed State v. Marohl, as reliable caselaw precedent. In Marohl, the court suggested that a casino floor could fall within the statute if it was used to smash someone’s head. Also, the Marohl court applied the dictionary definition to “instrument” and “thing,” describing both as:

“Here, in light of Marohl’s definition of “instrument or thing likely to produce bodily harm, hands do not qualify. The State relied solely on Altman’s hands to support the lesser alternative charge of third degree assault. Hands are not a “utensil” or “implement.” Nor are hands “an inanimate object.” Instead, hands are an extension of a person.” ~WA Court of Appeals.

The Court further reasoned that there is no other evidence that Altman used anything other than his hands when grabbing and squeezing A.W.’s neck. Therefore, the State failed to present sufficient evidence to support the essential element of “a weapon or other instrument or thing likely to produce bodily harm” for third degree assault.

With that, the Court of Appeals reversed and vacated Altman’s conviction for third degree assault with prejudice.

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.

At Trial, Police Can’t Comment on a Defendant’s Post-Arrest Silence

Van Dyke trial: Breaking down all 44 witnesses – Chicago Tribune

In State v. Palmer, the WA Court of Appeals held that the defendant’s Fifth Amendment Right Against Self-Incrimination was violated when the detective commented about the defendant’s post-arrest silence.

BACKGROUND FACTS

Palmer and his girlfriend, DD, moved in together in 2013. They lived together with DD’s two biological children from a prior marriage, her son AD, and her daughter PD. Palmer and DD also had a baby together, LP. Sometime in 2014, the family moved to Washington. Palmer served as caregiver to the children and in that role disciplined both PD and AD.

During a family car trip in 2016, Palmer grabbed AD by the neck, leaving a scratch. At
some point after the car trip incident, Palmer told DD that PD had touched his penis. Thereafter, PD disclosed to DD that Palmer had touched her vagina. Approximately four months after PD’s disclosure, DD contacted law enforcement. Law enforcement authorities interviewed the children on two separate occasions. Detective Ramirez participated in PD’s interview during which he learned of the accusations against Palmer.

Eventually, Detective Ramirez took Palmer into custody, read him Miranda rights, and questioned him. Ramirez ended the questioning after Palmer repeatedly refused to admit to any wrongdoing. Ramirez returned the next morning for additional questioning, but Palmer refused to talk. The State charged Palmer with one count of child molestation in the first degree and two counts of assault of a child in the second degree.

At trial, the Prosecutor questioned DSetective Ramirez and asked if he had spoken to Palmer after his initial interview. In the presence of the jury, Ramirez testified that he “went back the next morning, thinking that, you know, a day sitting in the county jail, you know, there’s some time to think, and maybe Mr. Palmer would want to do the right thing here.” Ramirez further testified that he told Palmer, “You’ve had some time to think. Do you want to talk?” and that Palmer responded that he did not want to talk.

The jury convicted Palmer of all charges.

On appeal, Palmer argued his right against self-incrimination was violated when Detective Ramirez discussed Palmer’s decision to remain silent.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with an engaging discussion of the Fifth Amendment. In short, a defendant’s right against self-incrimination prohibits the State from eliciting comments from witnesses about the defendant’s pre- or post-arrest silence. The State may also not suggest the defendant is guilty because they chose to remain silent, because the assurance of Miranda is that remaining silent will not be penalized.

Here, the State unequivocally elicited a comment from Ramirez about Palmer’s decision
to remain silent.

“Ramirez’s testimony was a comment on Palmer’s right to remain silent. More pointedly, contrary to State v. Easter, the State suggested that Palmer was guilty due to his silence. Indeed, Ramirez testified that Palmer remained silent after being given a chance to “do the right thing” by admitting criminal conduct. This statement presupposed Palmer’s guilt and created an impossible choice: Palmer could either do right by confessing to molesting a child or do wrong by remaining silent.”

“Implicit in the ‘silence equals wrongfulness’ notion is that silence withholds the ‘truth’—that ‘truth’ being one’s criminal conduct, even if there was no criminal conduct. In this context, a defendant cannot maintain their presumption of innocence by remaining silent. A detective’s belief on this front may assist with their investigative duty, but established authority prohibits using a defendant’s right to remain silent to suggest guilt to the jury.” ~WA Court of Appeals.

The Court of Appeals concluded by saying that alone, this violation may warrant reversal and a new trial. “However, because we reverse on other grounds, we remind the State that it is forbidden from eliciting comments about Palmer’s silence during his new trial.” With that, the Court of Appeals reverse the convictions and remanded to the trial court for a new trial.

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.

Trial Strategy: The Lesser-Included Jury Instruction

Some Thoughts About Trial Strategy - California Desert Trial Academy College of Law

At trial, criminal defendants have the right for the jury to be instructed on any applicable lower or lesser-included crimes. The evidence must support an inference that the lesser crime was committed instead of the greater offense.

However, should defendants always seek lesser-included jury instructions if the facts warrant this strategy? Isn’t it true that giving a jury too many alternatives to decide convict ultimately result in a conviction? A recent case captured the trickiness of deploying (or not) the lesser-included jury instruction at trial.

In State v. Conway (10/27/22), the WA Court of Appeals held that Defense Counsel’s “all-or-nothing” trial strategy was effective, even when counsel declined to seek a lesser included jury instruction. The Court found Counsel’s decision was deliberate and strategic, and did not prejudice the defendant at trial.

BACKGROUND FACTS

Mr. Conway allegedly attacked three different individuals at the Spokane Amtrak Station in a series of incidents. The State charged Conway with one count of second degree assault, one count of third degree assault, and one count of fourth degree assault. At trial, defense counsel admitted to the fourth degree assault. He also admitted that the other crimes amounted to fourth degree assault. However, counsel did not request an instruction for a lesser-included offense. The jury found Conway guilty of second and fourth degree assault but acquitted him of third degree assault.

On appeal, Conway argues ineffective assistance of counsel for his attorney’s failure to request an instruction for the lesser-included offense of fourth degree assault.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Criminal defendants have a constitutionally guaranteed right to effective assistance of counsel. A defendant bears the burden of showing (1) that his counsel’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances and, if so, (2) that there is a reasonable probability that but for counsel’s poor performance, the outcome of the proceedings would have been different.

The Court further elaborated that In reviewing the record for deficiencies, there is a strong presumption that counsel’s performance was reasonable. The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation.

“A decision by defense counsel to forgo an instruction on a lesser-included offense may be a legitimate trial tactic . . . Both the defendant and the State have the right to present an instruction for a lesser-included offense if all of the requirements have been met.” ~WA Court of Appeals, Division III.

Here, defense counsel’s decision to forgo an instruction on the lesser-included offense was not deficient. It was clearly strategic.

The Court of Appeals reasoned that there was strong evidence in support of the State’s assault charges. “The State presented the jury with undisputed video evidence of Conway assaulting the victims,” said the Court. “Because the State presented undisputed video evidence of the assaults, it was a legitimate trial tactic for defense counsel to admit that Conway had committed fourth degree assault.”

Moreover, even though an all-or-nothing strategy is legitimate regardless of success, in this case it worked. The jury acquitted Conway of third degree assault even though counsel acknowledged the assault.

With that, the Court of Appeals decided that Conway’s attorney was not constitutionally ineffective. “Defense counsel made a strategic decision to forego a lesser-included instruction on a felony assault charge,” said the Court. “The decision was not deficient and did not prejudice Conway at trial.” The Court upheld Conway’s conviction second and fourth degree assault.

My opinion? The above case captures the trickiness of allowing juries to convict a defendant of a lesser charge. In many cases, lesser included charges are important to defendants because jurors do not always exactly follow the law. For example, in an assault case, the jury might be so outraged at what they consider to be a brazen attack by the defendant that they don’t carefully consider whether the injuries were significant enough to rise to a felony or misdemeanor before returning a guilty verdict.

If the defense requests a lesser included charge of a lesser crime, the jury is more likely to carefully look at the evidence presented. Consequently, they may convict the defendant of the lesser crime if that is the only charge that they feel the evidence supported.

Requesting a lesser included charge is a double-edged sword, however. Some juries might have acquitted the defendant of assault if they didn’t believe that the prosecution proved that the incident was an upper-level felony. Ultimately, the key to deciding whether to request a lesser included charge is weighing the risks against the rewards.

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.

“Solicitation” Requires Monetary Value

H Law Group: Examples of Criminal Solicitation Under California Penal Code  653f

In State v. Valdiglesias LaValle (10/10/22), the WA Court of Appels overturned a conviction for Solicitation  to commit Murder in the First Degree. Here,  the defendant’s statement to her son that they would be “together forever” after the son poisoned his father to death was not a solicitation based on monetary value.

BACKGROUND FACTS

Ms. Valdiglesias LaValle was born and raised in Peru. She met Mr. Grady, who is 25 years older than her, through an online dating application. Grady brought Valdiglesias LaValle to Skagit County where they got married in 2008. During their marriage, they had two children, S.G. and J.G. By 2014, Grady and Valdiglesias LaValle no longer resided together. Grady filed for dissolution in 2015. Following the dissolution, Valdiglesias LaValle was initially awarded custody, and Grady was required to pay her child support. However, in 2019, the court awarded Grady full custody, and Valdiglesias LaValle was ordered to pay child support to Grady. Valdiglesias LaValle was granted four-hour unsupervised weekly visitation with her children.

On June 2, 2020, Grady drove 10-year-old S.G. and eight-year-old J.G. to Valdiglesias LaValle’s residence for a four-hour visitation. S.G. went into Valdiglesias LaValle’s bedroom because S.G. heard her and J.G. talking about “bad stuff” and “rat poison.” S.G. decided to record the conversation.

In short, Valdiglesias LaValle’s persuaded S.G. to administer rat poison to Mr. Grady’s drink. In exchange, Valdiglesias LaValle promised they would be “together forever” after the son poisoned his father Mr. Grady.

Shortly after, Mr. Grady picked up S.G. and J.G. S.G. shared the recording with Grady. Eventually, Child Protective Services and the police department were informed. The State charged Valdiglesias LaValle with Solicitation to commit Murder in the First Degree and Solicitation to commit Assault in the First Degree.

Valdiglesias LaValle argued a 3.6 Motion to Suppress the audio recording and a Knapstad Motion to Dismiss. The court denied both motions. At trial, a jury convicted her on both counts. Valdiglesias LaValle appealed her conviction on arguments that contends that her statement to S.G., that they will be “together forever,” is not a “thing of value” as
provided in Washington’s criminal solicitation statute.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by describing Washington’s criminal solicitation statute:

“A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed.”RCW 9A.28.030(1) (emphasis added).

The Court emphasized that the term “thing of value” is not defined in the statute or anywhere in the statute.

Next, the Court reviewed the plain language of the Solicitation statute. It stated that the relevant language at issue is the requirement that a person ‘offers to give . . . money or other thing of value’ to engage in the conduct. “Here, the phrase ‘thing of value’ is immediately preceded by the term ‘money,'” said the Court. “If the statute was meant to reach anything of value — which would be extremely broad — there would be no need to distinguish “money” separately from “other thing of
value.”

The Court concluded by saying it is not enough to simply command, encourage, or request another person to engage in specific conduct that would constitute a crime. In light of the above, the term “thing of value” under RCW 9A.28.030(1) contemplates things, tangible or intangible, that have monetary value.

With that, the Court of Appeals reversed Valdiglesias LaValle’s conviction and dismissed the 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.

2021 Crime Report: Violent Crime Up as Washington State Sees Decrease in Police Officers

Despite Crime Rate Decrease, Majority of Americans Think It Is Increasing

Journalist Adel Toay for King5.com says that violent crime has increased in Washington. According to a crime report from the Washington Association of Sheriffs and Police Chiefs (WASPC), violent crimes and murders increased while the number of police officers available to respond to incidents decreased in 2021.

“This is just very specific data, about crime trends, about our staffing level, about a couple of things that sort of stand out. But the numbers are all there. We’re very transparent. We wanted to get this out to everybody so that they have that information within their communities,” ~Steven Strachan, executive director of WASPC

According to the report, violent crime overall, which includes murder, aggravated assault, robbery and rape, increased by 12.3% in 2021.

There were 325 murders in 2021, an increase of 5.9% over 2020, following a 47% increase the year before. Strachan said this is the highest number of murders recorded since WASPC began collecting this data in 1980.

Hate crimes like Malicious Harassment in the state increased by 26.5% in 2021 with the most frequent offenses being intimidation and destruction of property.

Total crime overall is statistically down slightly, including a 78.8% decrease in identity theft and fraud from 2020, largely due to the huge spike in unemployment fraud during the pandemic. Other factors contributing to the statistical downward trend include a 60.9% decrease in drug offenses and a 73.6% decrease in drug arrests, due to a change in state laws.

“This is predominantly due to the Blake decision in 2021, which completely changed the ability to charge a criminal offense for personal possession of any drug,” said Strachan. In February 2021, the Washington State Supreme Court ruled the state’s simple drug possession crime statute was unconstitutional and voided it.

THE LOSS OF POLICE OFFICERS

Washington state lost nearly 500 police officers statewide in 2021 as the state’s population grew more than the population of Everett, according to the report. The number of commissioned law enforcement officers decreased 4.4%. The per capita rate of law enforcement officers fell to 1.38 per 1,000 statewide.

“When the staffing is down, the numbers are up,” said Strachan.

Strachan said it is the lowest per capita rate of officers the state has seen since WASPC began tracking this data in 1980, and it’s the lowest in the nation. The national average per capita rate for officers is 2.33 officers per 1,000, according to the FBI.

“Right now, a lot of agencies are treading water. Not every single one. Not every single agency is in a staffing crisis. Many are. These things are problems with solutions, and that is to support good policing and to recognize that public safety is important.”~Steven Strachan, executive director of WASPC

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.

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

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

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.

Lesser Included Offense

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.

Domestic Violence: The Pandemic Within the Pandemic

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Excellent article by Jeffrey Kluger of Time discusses how growing evidence shows the Coronavirus Pandemic has made Domestic Violence more common—and often more severe.

Surveys around the world have shown domestic abuse spiking since January of 2020—jumping markedly year over year compared to the same period in 2019. According to the American Journal of Emergency Medicine and the United Nations group U.N. Women, when the pandemic began, incidents of domestic violence increased 300% in Hubei, China; 25% in Argentina, 30% in Cyprus, 33% in Singapore and 50% in Brazil. The U.K., where calls to domestic violence hotlines have soared since the pandemic hit, was particularly shaken in June by the death of Amy-Leanne Stringfellow, 26, a mother of one and a veteran of the war in Afghanistan, allegedly at the hands of her 45-year-old boyfriend.

In the U.S., the situation is equally troubling, with police departments reporting increases in cities around the country: for example, 18% in San Antonio, 22% in Portland, Ore.; and 10% in New York City, according to the American Journal of Emergency Medicine. One study in the journal Radiology reports that at Brigham and Women’s Hospital in Boston, radiology scans and superficial wounds consistent with domestic abuse from March 11 to May 3 of this year exceeded the totals for the same period in 2018 and 2019 combined.

And as the pandemic has dragged on, so too has the abuse. Just as the disease continues to claim more lives, quarantine-linked domestic violence is claiming more victims—and not just women in heterosexual relationships. Intimate partner violence occurs in same-sex couples at rates equal to or even higher than the rates in opposite sex partners.

What’s more, the economic challenges of the pandemic have hit same-sex couples especially hard, with members of the LGBTQ community likelier to be employed in highly affected industries like education, restaurants, hospitals and retail, according to the Human Rights Campaign Foundation. That means higher stress and, concomitantly, the higher risk that that stress will explode into violence.

Please read my Legal Guide titled Defending Against Domestic Violence Charges and  contact my office if you, a friend or family member are charged with a DV crime. Hiring an effective and competent defense attorney is the first and best step toward justice.