Category Archives: Assault

Consecutive v. Concurrent Sentencing

Consecutive vs. Concurrent Sentencing in Kentucky - Baldani Law Group

Clients often ask, “What’s the difference between consecutive and concurrent sentences?”

Quite a lot, actually!

The question applies to Clients facing criminal charges from numerous jurisdictions. For these clients, sometimes the best approach is to seek a global resolution. This can happen if the prosecutors of the different jurisdictions are willing to coordinate their efforts toward a plea bargain involving reductions and dismissals of some criminal charges in exchange for guilty pleas to other charges.

Naturally, a big question in these negotiations is whether the defendant shall serve their jail time under a consecutive sentence or a concurrent sentences. Here’s some definitions:

Concurrent sentences: When sentences run concurrently, defendants serve all the sentences at the same time. This outcome is favorable to the defendant.

Consecutive sentences: When sentences run consecutively, defendants have to finish serving the sentence for one offense before they start serving the sentence for any other offense. This sentence outcome is not favorable to the defendant.

To illustrate the point, in State v. Brown the WA Court of Appeals recently held that firearm enhancements must be served consecutively in cases in which the defendant was 18-years or older when s/he committed the crimes.

BACKGROUND FACTS

A jury convicted Mr. Brown of four counts of first degree robbery, one count of attempted first degree robbery, two counts of second degree assault, and one count of attempting to elude a pursuing police vehicle. Five of the convictions included firearm enhancements, which are increased sentencing penalties.

At sentencing, the State recommended a sentence of 381 months. The State recommended five firearm enhancements ran consecutively to each other and to Mr. Brown’s base sentence of 129 months. The trial court imposed the State’s recommended sentence. Brown appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals raised and dismissed Mr. Brown’s arguments on appeal. It reasoned that under the Sentencing Reform Act – and specifically, RCW 9.94A.533(3)(e) – all firearm enhancements require prison time and shall run consecutively to all other sentencing provisions, including other firearm or deadly weapon enhancements.

“Brown’s sole claim is that he is entitled to resentencing because the sentencing court erroneously believed it lacked the discretion to depart from the required term of confinement for a firearm enhancement. We disagree.” ~WA Court of Appeals

To support its reasoning, the WA Court of Appeals relied on State v. Brown (no relation) a WA Supreme Court case which held that Washington law deprives sentencing courts of the discretion to impose an exceptional sentence with regard to firearm enhancements.

“In any event, a decision by the Washington Supreme Court is binding on all lower courts of the state,” reasoned the WA court of Appeals. “This court does not have the
authority to overrule Brown.”

With that, the Court of Appeals upheld Mr. Brown’s lengthy prison sentence.

My opinion? Again, if a defendant is convicted of a number of crimes that carry lengthy prison terms, the difference between consecutive and concurrent sentences can be tremendous. The same factors that judges tend to consider when deciding on the severity of a sentence (for example, a defendant’s past record) also affect their decisions on whether to give concurrent or consecutive sentences.

As you can see, however, some criminal statutes require that the sentence for the crime in question be served consecutively to any other crime committed in the same incident.

Please contact my office if you, a friend or family member face criminal charges involving the possibility of concurrent or consecutive sentencing. It’s crucial to hire an experienced criminal defense attorney who understands the law.

Victim’s Motive To Testify

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s knowledge that a criminal conviction would result in the defendant’s deportation.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

COVID-19 Brings DV Crimes?

Officials: Be aware of domestic violence risks as you shelter in ...

Interesting article by Jocelyn Noveck of the Associated Press describes a possible uptick in domestic violence related crimes resulting from couples and families being isolated together by the threat of COVID-19.

According to Ms. Noveck, concern is high in cities everywhere, and meaningful numbers are hard to come by.

“As the world’s families hunker down, there’s another danger, less obvious but just as insidious, that worries advocates and officials: a potential spike in domestic violence as victims spend day and night trapped at home with their abusers, with tensions rising, nowhere to escape, limited or no access to friends or relatives — and no idea when it will end.”

“In some cases, officials worry about a spike in calls, and in others, about a drop in calls, which might indicate that victims cannot find a safe way to reach out for help,” says Noveck.

In Los Angeles, officials have been bracing for a spike in abuse. “When cabin fever sets in, give it a week or two, people get tired of seeing each other and then you might have domestic violence,” said Alex Villanueva, the sheriff of Los Angeles County.

“We started getting on this as soon as soon as we started seeing the handwriting on the wall,” said Patti Giggans, executive director of the nonprofit Peace Over Violence in Los Angeles.

“One of the key challenges of this health pandemic is that home isn’t a safe place for everyone,” said Amanda Pyron, executive director of The Network: Advocating Against Domestic Violence, based in Chicago. “Victims and the abusers have to stay at the scene of the crime.” The group helps run a statewide 24-hour hotline, which has seen a spike in the average number of daily calls, from about 60 to 90, since confinement orders went into effect last weekend.

And at the group Women Safe, there’s been an uptick in calls. One change, said Frederique Martz, who runs the group, is that domestic violence victims are no longer being referred to hospitals which saturated with coronavirus cases.

Please contact my office if you, a friend or family member face criminal charges involving Domestic Violence during these turbulent times. Hiring an experienced criminal defense attorney is the first – and best – step toward achieving justice.

No Interpreter is Court Mismanagement

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In State v. Jieta, the WA Court of Appeals held that a trial court judge may dismiss a criminal prosecution due to the court’s failure to arrange for an interpreter for all scheduled court hearings.

BACKGROUND FACTS

On May 19, 2015, Mr. Jieta was first arraigned on charges of fourth degree assault and third degree malicious mischief in Snohomish County District Court. The court continued the arraignment after ordering that Jieta be provided a Marshallese interpreter. Over the next 15 months, the court held 14 more pretrial hearings, and the interpreter repeatedly failed to appear telephonically or personally.

On August 26, 2016, Jieta moved under CrRLJ 8.3(b) to dismiss all charges. On September 12, — another hearing where the interpreter failed to appear — the court dismissed all charges with prejudice and found the interpreter’s absences “seriously interfered with Mr. Jieta’s right to representation by counsel.” In short, out of 14 pretrial hearings conducted after the court directed the appointment of a interpreter, the interpreter failed to appear 10 times, appeared by phone – ineffectively – two times, and appeared in person two times. The superior court affirmed the dismissal on the State’s appeal.

The State sought discretionary review in this court, which was granted on the narrow question whether CrRLJ 8.3(b) can apply when court administration mismanages a case.

COURT’S ANALYSIS & CONCLUSIONS

Furthermore, the Court of Appeals explained that CrRLJ 8.3(b) gives courts discretion to dismiss “any criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.” To satisfy the rule, the alleged misconduct “need not be of an evil or dishonest nature; simple mismanagement is sufficient.”

The Court also reasoned that the judiciary has a statutory duty of appointing an interpreter to assist the defendant throughout the proceedings:

“Reliable interpreter services are necessary to secure a non-English speaking defendant’s fair trial rights. Thus, to assist a defendant throughout the proceedings, the interpreter must actually deliver translation services throughout the proceedings.”

The purpose of CrR 8.3(b) is to ensure fairness to defendants by protecting their right to a fair trial. Thus, when mismanagement by court personnel prevents a defendant from receiving reliable interpreter services and effective assistance of counsel for more than one year, the defendant has a viable claim of “governmental misconduct” consistent with the text and purpose of CrRLJ 8.3(b).

Here, the Court of Appeals reasoned that “governmental misconduct” can extend to mismanagement by court administration.

“We need not decide the exact types of court mismanagement that could warrant relief or when dismissal is an appropriate remedy for such mismanagement,” said the Court. “On the record before us, the State does not establish that the trial court erred in its conclusion that CrRLJ 8.3(b) may extend to a court’s administrative mismanagement of its statutory obligation to provide translator services.”

With that, the COurt of Appeals affirmed the dismissal of all charges.

My opinion? Good decision.

Court interpreters are important in legal proceedings, especially when criminal charges are involved. Interpreters ensure that defendants fully understand the charges and the proceedings. Indeed, the constitutional right to simply understand the charges and their maximum consequences is captured under the 6th Amendment.

Please contact my office if you, a friend or family member are charged with a crime and they need an interpreter to move forward in their defense. Hiring a competent, experienced attorney is the first and best step toward achieving justice.

Imprisoned At 7-11

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In  State v. Dillon, the WA Court of Appeals held that in Unlawful Imprisonment charges, the State must prove that the defendant knowingly restrained another person, not that the defendant knowingly acted without legal authority.

BACKGROUND FACTS

On December 21 2017, the soon-to-be victim Mr. Favors entered a 7-Eleven after he got off his bus. Favors encountered the soon-to-be defendant Mr. Dillon standing near the entrance to 7-Eleven. Favors noticed that Dillon had scratches on his face, was bleeding, and intoxicated. Favors thought that Dillon was panhandling and told him he did not have change. Favors continued into the 7-Eleven.

Dillon entered the 7-Eleven 10 to 15 seconds after Favors. Favors finished making his purchase and started walking towards the exit. Dillon was standing three feet in front of the exit. Dillon told Favors in a slurred voice to “get your ass back over there” and threatened to cut and shoot him. Favors feared that the situation would escalate and went to the back of the store. Favors tried to leave a second time and Dillon said “I told you one time; get your ass back over there.” Favors, who is African-American, recalled hearing a racial slur. Favors discreetly called 911.

Police arrived and arrested Dillon. At one point he  “reared his head back” and hit a police officer on his forehead and the bridge of his nose. The officer recalled that Dillon was
intoxicated, his balance was poor, and was making incoherent statements.

The State initially charged Dillon with Third Degree Assault of the police officer and Harassment of Favors, but amended the information to include Unlawful Imprisonment of Favors.

The defense requested a jury instruction on Voluntary Intoxication and the State did not object. The jury acquitted Dillon of felony harassment, but convicted him of third degree assault and unlawful imprisonment.

Dillon appealed on the issue of whether State must prove beyond a reasonable doubt that Dillon knowingly acted without legal authority.

COURT’S ANALYSIS & CONCLUSIONS

The State presented sufficient evidence that a reasonable juror could find beyond a reasonable doubt that Dillon knew he was acting without legal authority when he committed the crime of Harassment.

“The threats that Dillon made had no lawful purpose. Depending on the level of intoxication, a person under the influence can still form the requisite intent to know that their actions are unlawful.”

Dillon made threats to “cut” and “shoot” Favors, both of which demonstrate that Dillon knew he was acting without legal authority. Dillon “jumped” at Favors to prevent him from exiting the 7-Eleven, further supporting a finding that Dillon knew his actions were unlawfully restraining Favors.

Regarding the Unlawful Imprisonment conviction, the WA Court of Appeals ruled that Dillon did not say anything that indicated he thought he had legal authority to restrain Favors. Also, the Court denied the argument denied the defense of Escape and held that that Mr. Favors could not have safely departed 7-11 due to Mr. Dillon’s actions:

“Viewed in the light most favorable to the State, Favor’s testimony is sufficient to find, beyond a reasonable doubt, that Dillon restrained Favors’s movement, in a manner that substantially interfered with his liberty through intimidation, threats of violence, and by blocking the 7-Eleven exit.”

With that, the Court of Appeals upheld Dillon’s convictions.

Please contact my office if you, a friend or family member face criminal charges like Assault, Harassment or Unlawful Imprisonment. It’s imperative to hire an experienced and effective criminal defense attorney who knows the law.

Body Camera Evidence Admissible

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In State v. Clayton, the WA Court of Appeals held that police body camera evidence does not violate Washington’s Privacy Act because police interactions with a suspect and witnesses or victims of the crime are not private conversations.

BACKGROUND FACTS

The charges arose from a visit by law enforcement to a Spokane home. On the evening in question, multiple officers responded to the residence following a report of shots being fired. Mr. Clayton let officers in the residence and consented to a search. There were six people in the residence in addition to the officers who entered. Three officers had active body cameras recording the investigation, but none of the residents were advised of that fact.

An officer discovered two revolvers in a dresser and also observed bullet holes in a couch, wall, and the floor. Upon learning that Mr. Clayton was ineligible to possess the revolvers, officers arrested him for unlawful possession of the weapons. The prosecutor charged two counts of unlawful possession of a firearm based on the October arrest. Clayton’s girlfriend told officers that one month earlier, Clayton had fired a shot in the apartment that struck the couch on which she was sitting.

Ultimately, the prosecutor charged Clayton with one count of second degree assault and one count of unlawful possession of a firearm for the September incident, as well as two counts of unlawful possession of a firearm for the two weapons recovered in October.

After conducting a CrR 3.6 hearing on a defense motion to suppress the recordings, the court permitted the video evidence only to the point where the officer discovered the guns and arrested Clayton. Body camera footage from one of the officers was played for the jury at trial. The jury acquitted Clayton on the assault charge, but convicted him of all three
unlawful possession charges.

COURT’S ANALYSIS

On appeal, Mr. Clayton argues that the police body camera recording was made in violation of the “Privacy Act,” rendering the evidence inadmissible.

The Court of Appeals  ultimately ruled, however, that because the police interaction with Mr. Clayton and his family was not a private conversation, there was no error.

The Court described how the Privacy Act prohibits recording a private communication unless all parties to the communication consent. Consequently, any information obtained from unknown recordings is inadmissible in court.

More specifically, a communication is private under the act when (1) the parties have a subjective expectation that it is private, and (2) that expectation is objectively reasonable.  Among other things, the subject matter of the calls, the location of the participants, the potential presence of third parties, and the roles of the participants are relevant to whether the call is private.

When it comes to body-worn cameras, law enforcement may record people who have been arrested upon (i) informing the person that a recording is being made, (ii) stating the time of the beginning and ending of the recording in the recording, and (iii) advising the person at the commencement of the recording of his or her constitutional rights. In addition, (iv) the recording may be used only for valid police or court activities. Finally, the person must be told that he or she is being recorded. However, there is no requirement that the individual consent to the recording.

In short, the Court reasoned that conversations with uniformed, on-duty law enforcement officers are typically not private conversations.

“People understand that information they provide to officers conducting an investigation is going to turn up in written police reports and may be reported in court along with the observations made by the officers . . . The conversations took place in his apartment, a place where he had some subjective expectation of privacy, but they also occurred in the presence of five others. The subject matter of the visit—a report of a gun being fired and subsequent search for the weapon—was not a private one.”

Consequently, the trial court did not err in denying the defendant’s motion to suppress and upheld his convictions.

Please contact my office if you, a friend or family member face criminal charges and the evidence involves recordings from police body-worn cameras.

Overcoming Implicit Bias

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In State v. Berhe, the WA Supreme Court held that a trial court failed to adequately oversee allegations of racism and implicit bias among jurors deliberating in a Shoreline man’s first degree murder and first degree assault trial in 2016.

FACTUAL BACKGROUND

In 2016, a King County jury convicted Tomas Berhe, then 31, of murder and assault in a shooting in Seattle’s Eastlake neighborhood. Mr. Behre is African-American. He was convicted of killing 21-year-old Everett Williams, whom Berhe thought had shot his cousin. A second man who was in the Eastlake alley with Williams was also shot.

After the trial concluded with a guilty verdict in early 2016, the sixth juror contacted both defense attorneys and the court with concern, according to the opinion. Weeks later, Berhe asked the judge for a new trial and requested an evidentiary hearing to investigate the allegations of racial bias, among other concerns.

In a written declaration presented by the defense, the sixth juror said she was the only African American on the jury in the trial of an African American defendant and described being the last holdout among four jurors who had initially leaned against conviction.

By the trial’s end, the sixth juror said she only agreed to vote for a guilty verdict because she felt “emotionally and mentally exhausted from the personal and implicit race-based derision from other jurors,” the opinion quotes the declaration as saying.

The juror said others had mocked her as stupid and illogical when she suggested that Berhe could have taken the murder weapon from someone else. She described two jurors as taunting her, saying that she would “let him walk,” and said she felt mocked after several jurors interpreted something she’d said as commentary on police misconduct toward African Americans.

Responding to the defense’s declaration, prosecutors sent questions to several jurors asking if they themselves, or another juror, had done anything to the sixth juror that was motivated by racial bias during deliberations. Results were not conclusive, and the Superior Court judge found insufficient evidence of juror misconduct and denied a request for a new trial.

COURT’S ANALYSIS & CONCLUSIONS

First, the WA Supreme Court described how racial bias harms trial verdicts:

“Unlike isolated incidents of juror misbehavior, racial bias is a common and pervasive evil that causes systemic harm to the administration of justice. Also unlike other types of juror misconduct, racial bias is uniquely difficult to identify.”

Second, the Court reasoned that Courts must carefully oversee any inquiry into whether explicit or implicit racial bias influenced a jury verdict.

“Rather than permitting the parties alone to investigate allegations of racial bias, once a claim of racial bias is raised, inquiries into the influence of that racial bias on a jury’s verdict must be conducted under the court’s supervision and on the record,” said the Court. “Therefore, as soon as any party becomes aware that there are sufficient facts to support allegations that racial bias was a factor in the verdict, the court and opposing counsel must be notified.”

Third, the Court reasoned that the unique challenge of assessing implicit racial bias requires a searching inquiry before a court can decide whether an evidentiary hearing is needed. “Implicit racial bias is a unique problem that requires tailored solutions,” said the Court. “Therefore, when it is alleged that racial bias was a factor in the verdict, the trial court must oversee and conduct a thorough investigation that is tailored to the specific allegations presented before deciding whether to hold an evidentiary hearing and before ruling on a defendant’s motion for a new trial,” said the Court.

The Court concluded that the trial court abused its discretion by failing to exercise adequate oversight over the investigations into juror 6’s allegations of racial bias and by failing to conduct a sufficient inquiry before denying Berhe’s motion for a new trial without an evidentiaiy hearing. “We therefore vacate the trial court’s order denying Berhe’s motion for a new trial and remand for further proceedings.”

My opinion? Excellent decision. Groundbreaking, even. In what could be a first-of-its-kind rule nationwide, the judges’ opinion establishes procedures for trial court judges to investigate implicit racial bias reported during jury deliberations.

This isn’t the first time our Supreme Court has openly exercised judicial activism. In April, the state Supreme Court published General Rule 37, a rule for courts saying that challenges during jury selection based on implicit, institutional and unconscious race and ethnic biases should be rejected, she noted. Now, similar protection from bias extends into the jury room.

Excellent decision.

Self-Defense in Jail

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In State v. Tullar, the WA Court of Appeals held that a defendant was entitled to a self-defense instruction even though he did not testify that he feared his opponent would badly beat him. The defendant may establish his subjective fear by circumstantial evidence through the testimony of others.

FACTUAL BACKGROUND

On December 31, 2017, a correctional officer  Millward was making his welfare checks on inmates at the Okanogan County jail.  He came across Johnathan Cook’s cell. Officer Millward saw Cook facing away from the door, and Officer Millward could tell something was wrong. Officer Millward asked Cook to turn around, and he noticed bruising and a laceration on Cook’s face, a bloodstained shirt, and bruising on his ear. Officer Millward took Cook to get medical attention. Cook was diagnosed with a fractured nose and a fractured left eye socket.

Mr. Cook said he was assaulted by fellow inmate Brandon Tullar.

Jail authorities confronted Tullar, who denied fighting Cook. Despite his denials, there were noticeable marks on Tullar’s hands and his elbow, as well as red marks on his neck.  The State charged Tullar with assault in the second degree. Tullar asserted the defenses of self-defense and mutual combat.

Tullar’s case went to trial. He withdrew his claim of self-defense and proceeded with the defense of mutual combat. He then called two fellow inmates who witnessed the fight. According to both inmates, Cook and Tullar were arguing, and Cook challenged Tullar to a fight. Cook and Tullar then went upstairs to Cook’s cell, with Tullar going first. Once inside the cell, Cook hit Tullar from behind. Cook put Tullar in a chokehold, but Tullar escaped. They exchanged punches until Cook gave up.

Despite the testimony from witnesses, the trial court denied Tullar’s jury instruction for self-defense because Tullar did not testify. The trial court also noted that self-defense was inconsistent with mutual combat. The jury found Tullar guilty of assault in the second degree. Tullar timely appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals gave background on Washington’s self-defense laws. In Washington, the use of force is lawful when used by a person about to be injured, provided that the force used is not more than necessary. Because self-defense is a lawful act, it negates the mental state and the “unlawful force” elements of second degree assault. Importantly, the Court also reasoned that self-defense does not require testimony from the defendant.

“Evidence of self-defense may come from whatever source and the evidence does not need to be the defendant’s own testimony.”

Here, Tullar’s witnesses testified that Cook hit Tullar from behind and then put him in a chokehold. From this, a trier of fact could infer that Tullar reasonably feared that if he did not fight back, he would be rendered unconscious. Additionally, Tullar’s witnesses testified that Tullar stopped fighting when Cook gave up. From this, a trier of fact could find that Tullar used no more force than necessary. A self-defense instruction was warranted to let the finder of fact determine whether it believed Cook or whether it believed Tullar’s witnesses.

“The trial court’s decision to not instruct the jury on self-defense virtually guaranteed Tullar’s conviction,” said the Court of Appeals. “The trial court’s refusal to give a self-defense instruction thus prejudiced Tullar.”

Consequently, the Court of Appeals reversed Tullar’s conviction.

My opinion? Good decision. Self-defense is a substantive defense which can guarantee a full acquittal if the court allows the instruction at trial. It shouldn’t matter whether the defendant testifies if trustworthy witnesses can testify and lay the groundwork for the defense. Please contact my office if you, a friend or family member face criminal charges and self-defense is a viable defense.

Words Alone

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In State v. Kee, the WA Court of Appeals held that words alone are not sufficient to make a defendant the primary aggressor in an altercation.

BACKGROUND FACTS

The State charged Ms. Kee with the second degree assault of Mr. Ostrander based on an
incident on August 1, 2016. Kee punched Ostrander in the face and broke his nose.

Apparently, they exchanged words when Kee was walking down the street playing her radio loud. Eventually, they engaged in mutual combat by hitting each other back and forth several times.  Although Ostrander struck Kee in the face several times, Kee’s final blow to Ostrander broke Ostrander’s nose.

The case proceeded to a jury trial. Kee’s defense was self-defense.

At trial, the State proposed a first aggressor jury instruction. Kee objected to the instruction, arguing that it was not supported by the evidence presented at trial. The trial court disagreed and gave the following first aggressor jury instruction:

“No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon use, offer or attempt to use force upon or toward another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that [the] defendant’s acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.”

The jury found Kee guilty of second degree assault. She appealed on arguments that the trial court erred because its jury instruction denied her the ability to argue her theory of self-defense. Specifically, Kee argued there was insufficient evidence to justify a first aggressor jury instruction because words alone do not constitute sufficient provocation.

COURT’S ANALYSIS & CONCLUSION

Ultimately, the Court of Appeals agreed with Kee. It held that although sufficient evidence supported the first aggressor jury instruction, the trial court nevertheless erred in giving the jury instruction without also instructing the jury that words alone are not sufficient to make a defendant the first aggressor.

The Court reasoned that generally, a defendant cannot invoke a self-defense claim when she is the first aggressor and provokes an altercation. Also, a first aggressor jury instruction is appropriate when there is credible evidence from which a jury can reasonably determine that the defendant provoked the need to act in self-defense.

Nevertheless, the Court of Appeals also reasoned that although there was evidence of a physical altercation,  their interaction started with a verbal altercation. Therefore, the evidence supported a finding that Kee’s words, rather than her physical acts, first provoked the physical altercation.

“By failing to instruct the jury that words alone are insufficient provocation for purposes of
the first aggressor jury instruction, the trial court did not ensure that the relevant self-defense legal standards were manifestly apparent to the average juror,” said the Court of Appeals. “Moreover, the trial court’s instructions affected Kee’s ability to argue that she acted in self-defense.”

Accordingly, the Court of Appeals reversed Kee’s conviction.

My opinion? Good decision. I’ve conducted many jury trials involving defendants who acted in self-defense to assault allegations. Under the law, self-defense is an affirmative defense to assault charges. In my experience, prosecutors combat a defendant’s self-defense theories by trying to prove the defendant was the primary aggressors. If successful, then the jury cannot consider whether the defendant acted in self-defense. The “aggressor “juror instruction exists to  nullify, circumvent and/or defeat a defendant’s self-defense claim.

State v. Kee is pertinent to the issue of whether words alone exchanged between two participants who willingly fight each other – whether words alone – allow the jury to decide if the defendant was the primary aggressor. Of course not! By themselves, words are not enough, and the Court of Appeals agreed. Indeed, words can be quite motivational for people to engage in mutual combat similar to the parties in State v. Kee. And by the way, mutual combat is lawful because Washington imposes no duty for either party to retreat from a fight.

Please contact my office if you, a friend or family member face criminal charges of assault. It’s important to hire an experienced defense attorney who knows the law, is aware of possible defenses and is willing to take the case to trial.

Right to Impartial Jury

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In State v. Phillips, the WA Court of Appeals held that the trial court did not violate an African-American defendant’s right to an impartial jury by dismissing a prospective juror despite the juror’s feelings that African American men are more prone to violence.

BACKGROUND FACTS

On July 1, 2016, Mr. Phillips came home late after his wife Ms. Philips was in bed asleep with their infant daughter. Ms. Philips told Mr. Phillips to leave her alone. Their daughter called 911 and reported that Mr. Phillips was hitting Ms. Philips. When Mr. Phillips saw his daughter was calling the police, he knocked the phone from her hands.

King County Sheriff’s deputies responded to the 911 call and found the house in chaos. Mr. Phillips was arrested and booked into jail. From jail, Mr. Phillips repeatedly called Mrs. Philips demanding that she get him out and expressing his anger at the police having been called. Mr. Phillips was charged with Assault in the Second Degree Domestic Violence (DV) and Tampering With a Witness.

Jury Selection

During jury selection, the trial judge asked if any of the jurors had personal experience
with domestic violence. Juror 10 was among the members who raised their hand. When asked to elaborate, he explained that his sister and his wife’s sister-in-law were both involved in abusive relationships with intimate partners.

Juror #10 also revealed an experience in college after an intramural basketball game when an African American player on the opposing team assaulted him. Juror 10 explained, “nothing came of it, but it left an emotional imprint.” He further elaborated,

“And this is an emotional truth. I don’t live this way; I don’t believe this; but I’m also aware that feelings happen in reality that black men are more prone to violence . . . It was also notable that afterwards when, you know, the gym supervisor was called and there was just a huddle on the spot, and then, of course there was denial and, you know, dismissiveness of it. And that’s another narrative; that those who are violent try to get out of it; so those are two personal emotions imprints that are there, as well.”

From these comments, both the State Prosecutor and Mr. Philips’ defense attorney asked numerous questions to Juror #10. Ultimately, neither the State nor defense counsel exercised a peremptory challenge or moved to strike Juror #10 for cause. Later, Juror #10 served on the jury.

Ultimately, the jury found Phillips guilty of second degree assault and found the State prove aggravating circumstances. The jury was unable to reach a verdict on the witness tampering charge, and it was dismissed. Mr. Philips was sentenced to 120 months.

He appealed. One of the issues was whether Juror #10 should have been struck from serving on the jury panel.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals upheld Mr. Philips’ conviction.

The Court started by giving a substantial amount of background on the issue of jury selection. It said the Sixth and Fourteenth Amendments of the United States Constitution, and article 1, section 22, of the Washington Constitution, guarantee a criminal defendant the right to trial by an impartial jury.

Furthermore, in order to ensure this constitutional right, the trial court will excuse a juror for cause if the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath. The presence of a biased juror cannot be harmless; the error requires a new trial without a showing of prejudice.

Also, at trial, either party has a statutory right to challenge a prospective juror for cause. “Actual bias is a ground for challenging a juror for cause,” said the Court of Appeals. “Actual bias occurs when there is the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.”

Furthermore, Under State v. Irby, RCW 2.36.110 and CrR 6.4 it is the judge’s duty to excuse potential jurors from  jury service if they have manifested unfitness as a juror by reason of bias, prejudice, indifference, inattention or any physical or mental defect. These court precedents, statutes and court rules give a trial judge an independent obligation to excuse a juror, regardless of inaction by counsel or the defendant.

However, the Court of Appeals ultimately reasoned that the present case was distinguishable from Irby.

Also, the Court of Appeals reasoned that defense counsel was alert to the possibility of biased jurors.

“Defense counsel actively questioned Juror #10, including questioning whether, despite juror 10’s concerns, the juror would follow the court’s instructions and base his decision on the evidence presented,” reasoned the court of Appeals. “As a result, defense counsel did not challenge Juror #10. This suggests that defense counsel observed something during voir dire that led counsel to believe Juror #10 could be fair.”

Furthermore, the Court of Appeals said it was also significant that Phillips used his peremptory challenges to strike several jurors, but had one peremptory challenge remaining when he accepted the jury, including Juror #10. “Again, this suggests that defense counsel either wanted juror 10 on the jury, or did not want one or both the next potential jurors on the panel,” said the Court of Appeals.

Consequently, the Court of Appeals held that the trial court did not abuse its discretion in failing to excuse Juror #10 for cause and upheld Mr. Philips’ conviction.

My opinion? Bad decision.

I’ve conducted nearly 40 jury trials, which is more experience than most criminal defense attorneys have. In my experience, potential jurors have a tendency to mitigate, justify, deny, back-pedal and just plain cover up any biases they have. It’s human nature. Therefore, if any juror states they have a biases which prejudice a criminal defendant, then that juror should be excused. Period.

Unfortunately, it appears Defense Counsel also failed to strike Juror #10. That is unfortunate as well. As the judge said, however, this may have been strategic. Perhaps Defense Counsel wanted to avoid impaneling a potential juror who was actually more biased than Juror #10. We don’t know.

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