Category Archives: Assault

Prostitution Evidence Admitted During Defendant’s Assault Trial

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In State v. Woods, the WA Court of Appeals held that evidence of prostitution was properly admitted in the defendant’s prosecution for assault in the second degree. The Court reasoned these prior acts were necessary to explain to the jury why the victim was fearful of seeking help from her family or from the police.

BACKGROUND FACTS

The Defendant and alleged victim began their volatile relationship in 2009. Drug use, emotional abuse and physical abuse were allegedly involved.  Later, allegations arose the Defendant forced the alleged victim to engage in prostitution.

In April of 2012, the alleged victim’s mother drove her to the hospital in the aftermath of an alleged assault. The alleged victim disclosed other recent assaults during a subsequent interview with a police detective.

THE CHARGES, JURY TRIAL & BASIS FOR APPEAL

The Defendant was charged with one count of assault in the second degree for the September 2011 strangulation, with a special allegation of domestic violence pursuant to RCW 10.99.020.

During trial, the court admitted evidence of an August 2011 strangulation and the prostitution evidence. It determined that such evidence was admissible because it aided the jurors in understanding the nature of the relationship, motive, and intent, and helped to illuminate the alleged victim’s state of mind.  The trial court also noted that testimony regarding prior assaults may assist the jury in understanding the dynamics of the domestic violence relationship and in assessing the alleged victim’s credibility.

The jury found the Defendant guilty. He timely appealed. The WA Court of Appeals granted review to resolve the issues presented.

THE COURT’S REASONING AND CONCLUSION.

ER 404(b) Evidence

The Court of Appeals reasoned that under ER 404(b), evidence of a defendant’s prior bad act is not admissible to prove the defendant’s character and to show action in conformity therewith. However, such evidence may be admissible for other purposes, depending on its relevance and the balancing of its probative value and danger of unfair prejudice. For evidence of a prior bad act to be admissible, a trial judge must (1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Under this analysis, the Court of Appeals reasoned that the trial court’s rulings herein were correct. The alleged victim’s testimony as to how the Defendant forced her into prostitution and why she was unable to escape was necessary for the jurors to understand the dynamics of this domestic violence relationship. Furthermore, the court found that the complainant’s professed shame and fear associated with forced prostitution was an important factor for the jury to consider.

Ineffective Assistance of Counsel

The Court illustrated how ineffective assistance of counsel is established only when the defendant shows that (1) counsel’s performance, when considered in light of all the circumstances, fell below an objectively reasonable standard of performance, and (2) there is a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

Under this analysis, the Court rejected the Defendant’s arguments that his counsel was ineffective for failing to object to the admission of the prostitution evidence.  It reasoned there was nothing objectionable about this evidence because it was properly admitted pursuant to ER 404(b). Moreover, the Defendant’s counsel expressly deferred an objection to the prostitution evidence after stating that he viewed that evidence as presenting a valuable area for cross examination: “Rather, the record demonstrates that a tactical decision was made.”

The Defendant also believed he received ineffective assistance of counsel because his attorney failed to request a limiting instruction regarding the prostitution evidence. However, the Court of Appeals held this was also a strategic decision on the part of defense counsel. With that, the Court of Appeals held that Woods was not prejudiced and upheld his conviction.

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.

Unlawful Property Seizure

Assault, Bellingham Defense Attorney, Constitutional Rights, felony, Fifth Amendment, Harassment, Jury Trial, Property Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Rivera, the WA Court of Appeals Div. II decided a trial court lacks authority to order defendants to forfeit their property as a condition of their felony sentencing.

BACKGROUND & FACTS

On September 20, 2014, Alicia Clements arrived at defendant Kevin Rivera’s home to serve him papers concerning a civil matter. Ms. Clements exited her vehicle to tape the documents to a post near Mr. Rivera’s driveway. While Clements was posting the paperwork, Rivera and his wife came out the front door and into the driveway. Rivera yelled at Clements that she was trespassing and needed to leave.

As Clements was getting back into her car, Rivera took down the documents she posted and approached her car to return them. In the process of returning the documents, Rivera shattered the driver’s side window on Clements’s car, causing glass to cascade into the car and onto the street.

Ms. Clements claimed that her window was completely rolled up and that Rivera had deliberately punched through the window with the documents in hand, striking her twice with his fist in the process. However, Rivera stated that Clements’s window was still open when he returned the documents, but that because Clements was attempting to roll up her windows, his fingers caught the edge of the window causing it to shatter.

Both Rivera and Clements called 911. Pierce County Sheriff’s Deputies responded to the incident. Mr. Rivera for assault. The State charged Rivera with second degree assault by battery under RCW 9A.36.021(1)(a), felony harassment, and third degree malicious mischief.

At trial, Rivera conceded that he had broken Clements’s window, but argued he did so accidentally rather than intentionally. The jury convicted Rivera of second degree assault and third degree malicious mischief. As part of his sentence, Rivera was required to forfeit “all property.”

CONCLUSION & ANALYSIS.

The Court of Appeals held that the trial court lacked authority to order property forfeiture as a sentencing condition.

It reasoned that under State v. Roberts, 185 Wn. App. 94, 96, 339 P.3d 995 (2014), the authority to order forfeiture of property as part of a judgment and sentence is purely statutory.. In other words, a trial court has no inherent power to order forfeiture of property in connection with a criminal conviction.

With that, the Court of Appeals held that the trial court erred by ordering forfeiture of seized property as a sentencing condition.

My opinion? Good decision. I’ve never heard of courts seizing a defendant’s property as a condition of sentencing. Indeed, the Fifth Amendment states that a person may not be deprived of property by the government without “due process of law,” or fair procedures. Typically, if property is an issue, then courts can lawfully order a defendant to pay restitution to the victim for the loss or damage to victim’s property. This makes sense. But to actually take a defendant’s property as a sentencing condition? No.

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.

Assault is “Lesser Included” Charge for Indecent Liberties.

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In State v. Bluford, the  WA Court of Appeals Div. I decided that Assault in the Fourth Degree satisfies the legal prong of the lesser included offense test for the crime of Indecent Liberties. Charles Bluford appealed his conviction for Indecent Liberties on arguments that the trial court failed to instruct the jury on the lesser charge of assault.

For those who don’t know, a “lesser-included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

Here, the Court reasoned that instructing juries on lesser included offenses “is crucial to the integrity of our criminal justice system,” and that  courts should therefore “err on the side of instructing juries on lesser included offenses.” Furthermore, the Court of Appeals reasoned that courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.

The Court analyzed whether a defendant is entitled to a lesser included offense instruction under the test announced in State v. Workman. Under this test, the defendant is entitled to a lesser included jury instruction when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed.

The court applied the Workman test and decided Bluford should have been granted a lesser included instruction for assault fourth degree. Here, the State charged Bluford with one count of Indecent Liberties. This requires that a person “knowingly cause another person who is not his or her spouse to have sexual contact with him or her or another.. . by forcible compulsion.” Accordingly, this crime requires knowledge as the mental state. Therefore, Workman’s factual prong was satisfied.

The common-law definition of assault that applies is an “unlawful touching with criminal intent.” Thus, reasoned the court, fourth-degree assault requires intent as the mental state.  Indecent liberties also requires “sexual contact.” Thus, the State must prove that the defendant acted with a sexual purpose. Accordingly, fourth-degree assault does not require a higher mental state than indecent liberties. Therefore, reasoned the Court, the Workman test’s legal prong is met here, as well.

Consequently, Bluford was entitled to a lesser included offense instruction on fourth-degree assault.

The court reversed his conviction.

My opinion? Good decision. Sometimes, Prosecutors “overcharge” the seriousness of criminal acts. For example, some offenses charged as Assault in the Second Degree should really be charged as Assault in the Fourth Degree. Consequently, it’s imperative for competent defense attorneys to try convincing judges to give more options to juries than “guilty” or “innocent” on overcharged offenses.

That’s why the “lesser included instruction” tactic is a valuable trial tool to seek reductions, especially for sex offenses, which are some of the most damaging criminal charges one could possibly face. A sexual assault or sex crime carries serious penalties, including loss of freedom, sexual deviancy treatment, lengthy registration requirements and negative public stigma. Sexual assault convictions also limit future job opportunities and possibly prevent people from seeing their families. The effects are devastating.

For more information on sex offense defense, please read my practice area Sex Offenses. And 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.

Apology Letters & Free Speech

Assault, Bellingham Defense Attorney, Compelled Speech Doctrine, Constitutional Rights, Juvenile, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v . K.H.-H., the WA Supreme Court held that a defendant’s First Amendment free speech rights are not violated by a requirement that the offender write an apology letter to the victim of the crime.

K.H.-H., a 17-year-old male, was charged with assault with sexual motivation after he forced himself on C.R., a female acquaintance who attended the same high school. The juvenile court found K.H.-H. guilty. At the disposition hearing, the Prosecutor requested the court order K.H.-H. to write a letter of apology to the victim. Defense Counsel objected, insisting that K.H.-H. maintained the right to control his speech. The Court followed the Prosecutor’s recommendations and ordered K.H.-H. to write an apology letter. The court also imposed three months of community supervision.

K.H.-H appealed. Eventually, his case ended up in the WA Supreme Court.

In short, the Court upheld the sentencing requirement that K.H.-H write the apology letter.

First, the Court acknowledged that because a forced apology involves making an offender say something he does not wish to say, it implicates the compelled speech doctrine. The compelled speech doctrine generally dictates that the State cannot force individuals to deliver messages that they do not wish to make.

Nevertheless, the Court also stated that First Amendment rights are not absolute, particularly in the context of prison and probation, where constitutional rights are lessened or not applicable. “Similarly, criminal convictions result in loss or lessening of constitutional rights.”

The Court also reasoned that a victim has an interest in receiving a letter of apology. This not only aims to rehabilitate the juvenile offender but also acknowledges the victim’s interest in receiving the apology:

“A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior. Additionally, an apology letter recognizes the victim’s interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts.

This further advances the rehabilitative goals of the statute. The outward manifestation of accepting and apologizing for the consequences of one’s actions is a rehabilitative step that attempts to improve K.H.-H.’s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. ‘s rehabilitation and the crime here. One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights.”

Justice McCloud dissented. Among other things, his dissent says the following:

“Compelling a false apology for a crime the defendant denies committing is far from the least restrictive means of achieving rehabilitation. In fact, it is probably the most ineffective way to achieve that result.”

An interesting case, no doubt.

My opinion?

I strive for reductions and dismissals in all of my cases. Sometimes that means taking accountability for what happened. Consequently, that also means apologizing. An apology letter to the judge is a great place to start. They are a great way to demonstrate responsibility and remorse for your actions. While an apology letter to the judge/magistrate is often an excellent way to show your remorse after you have committed an offence, it’s success will largely depend on how serious the crime was. Among other things, judges consider your likelihood at re-offending.

A sincere apology letter may show you have learnt your lesson and may go some way to proving this. Writing a letter to the victim can be one way of repairing the harm caused. Remember, judges have a fair amount of discretion when sentencing. They can consider the fact that you have taken responsibility for your actions as well as paid for any loss or damage caused. Finally, many victims will be happy to receive a sign of your recognition of the harm that you have caused them, especially if your crime wasn’t intentional or didn’t cause a great deal of harm.

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.

Youth as Mitigating Factor

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In State v. Solis-Diaz, the WA Court of Appeals Division II held that a juvenile defendant who was tried as an adult for numerous violent felony crimes involving firearms is entitled to a sentencing at which the judge must conduct a meaningful, individualized inquiry into whether the defendant’s youth should mitigate his sentence.

Solis-Diaz was 16 years old in 2007, when he participated in a gang related drive-by shooting in Centralia. He was charged with six counts of Assault in the First Degree, each with a firearm sentencing enhancement; one count of Drive-by Shooting; and one count of Unlawful Possession of a Firearm in the Second Degree. He was tried as an adult. The jury found him guilty on all counts, and the trial court imposed a sentence of 1,111 months in prison.

Solis-Diaz requested an exceptional downward sentence on grounds that the multiple offense policy of the Sentencing Reform Act of 1981 (SRA) operated to impose a clearly excessive sentence and that Solis-Diaz’s age indicated diminished capacity to understand the wrongfulness and consequences of his actions. The judge denied the request and again imposed a standard-range sentence of 1,111 months in prison. Solis Diaz appealed.

The Court of Appeals held that under the SRA, a sentencing court must generally sentence a defendant within the standard range. Pursuant to the SRA’s multiple offense policy, standard range sentences for multiple serious violent offenses are to be served consecutively and not concurrently.

This is important. For those who don’t know, a consecutive sentence is when a defendant has been convicted of more than one crime, usually at the same trial, and the sentences for each crime are “tacked” together, so that sentences are served one after the other. In contrast, a concurrent sentence is when sentences on more than one crime “run” or are served at the same time, rather than one after the other. For instance, if a defendant’s three crimes carry sentences of five, three, and two years, the maximum time he’ll spend in jail is five years.

The Court of Appeals further reasoned that a court may impose an exceptional sentence below the standard range if it finds that mitigating circumstances are established by a preponderance of the evidence. One such mitigating circumstance exists if the operation of the multiple offense policy results in a presumptive sentence that is clearly excessive.  When the resulting set of consecutive sentences is so clearly excessive under the circumstances that it provides “‘substantial and compelling reasons’” for an exceptional sentence below the standard range, the sentencing court may grant that exceptional downward sentence.

Additionally, the Court of Appeals relied on the WA Supreme Court’s recent decision in State v. O’Dell. In that decision, and similar to the defendant here, O’Dell was a juvenile who was also tried and sentenced as an adult to a very serious felony crime (rape, in O’Dell’s case). At O’Dell’s sentencing, the trial court ruled that it could not consider O’Dell’s age as a mitigating circumstance and imposed a standard range sentence of 95 months.  The Supreme Court disagreed with O’Dell’s trial court: “[I]n light of what we know today about adolescents’ cognitive and emotional development, we conclude that youth may, in fact, “relate to a defendant’s crime.”

The Court of Appeals followed O’Dell and said the following:

“The same logic and policy that led the Supreme Court to require the consideration of the youth of a young adult offender would apply with magnified force to require the same of Solis-Diaz, who committed his crimes while a juvenile. As did the trial court in O’Dell, the trial court here decided that under Ha’mim it could not consider the defendant’s youth as a mitigating factor in sentencing. As did the trial court in O’Dell, the trial court here abused its discretion in refusing that consideration. Our Supreme Court’s analysis in O’Dell compels the same result: reversal of Solis-Diaz’s sentence and remand for a new sentencing hearing to meaningfully consider whether youth diminished his culpability.”

The WA Court of Appeals even offered a litmus test in making these determinations:

“In short, a sentencing court must take into account the observations underlying Miller, Graham, Roper, and O’Dell that generally show among juveniles a reduced sense of responsibility, increased impetuousness, increased susceptibility to outside pressures, including peer pressure, and a greater claim to forgiveness and time for amendment of life. Against this background, the sentencing court must consider whether youth diminished Soliz-Diaz’s culpability and make an individualized determination whether his “capacity to appreciate the wrongfulness of his conduct or to conform that conduct to the requirements of the law” was meaningfully impaired.”

The WA Court of Appeals concluded that the sentencing court erred in failing to consider whether the operation of the SRA and Solis-Diaz’s youth at the time he committed the crimes should mitigate his standard range sentence and warrant an exceptional downward sentence.

Consequently, the Court of Appeals vacated Solis-Diaz’s sentence and remanded for re-sentencing back to the trial court. The Court of Appeals also noted that Solis-Diaz may move to disqualify the prior sentencing judge.

My opinion? I’m very pleased Division II is embracing O’Dell, an opinion which I’ve discussed in my blog titled, “State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing.” Furthermore, I’m pleased that Division II also offered a workable litmus test in determining these issues juvenile sentencing for adult crimes. Very good. It not only shows the Courts are following O’Dell, they are also supporting it and offering guidelines for future decisions involving juvenile justice.

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. Deleon: Court Strikes Evidence of “Gang Affiliation” Due To Defendant’s Music Preferences

Assault, Bellingham Defense Attorney, Constitutional Rights, Duress Defense, Evidence, felony, Prison, Race & Law, Search and Seizure, Self-Incrimination, Sentencing, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Deleon, the  WA Supreme Court held that (1) a defendant’s musical preference does not establish gang membership, and their admittance to gang affiliation during jail  booking may not be used at trial.

The State prosecuted Mr. Deleon and two others for multiple counts of Assault in the First Degree with deadly weapon enhancements and with gang aggravators.  If convicted, these upward enhancements substantially increased Deleon’s prison sentence. At trial, the court admitted as evidence of gang affiliation statements the defendant made at booking about his gang affiliation and evidence of the type of music on his cell phone.  Also, the trial court allowed a police officer to testify as a gang expert regarding generalized information of gang affiliation.

Mr. Deleon was found guilty and sentenced to 1,002 months. He appealed on the issue of (1) whether the trial court violated his Fifth Amendment right against self incrimination improperly admitted the aforementioned evidence, and (2) whether the gang expert testimony regarding gang culture and behavior was irrelevant and thus improperly admitted.

The WA Supreme Court reasoned that the gang information from the jail intake forms was not gathered voluntarily, and thus should not have been admitted as evidence. In short, it reasoned that when a defendant’s self-incriminating statements are made in exchange for protection from credible threats of violence while incarcerated, the statements are coerced and involuntary:

“We do not see how statements made under these circumstances could be considered voluntary. The admission of these statements was a violation of the defendant’s Fifth Amendment rights.”

The WA Supreme Court also ruled that the trial court mistakenly allowed evidence of the type of music on the defendant’s phone as evidence of gang affiliation. “Los Tigres del Norte is a prominent and popular Latin band and there is no evidence in the record to support that enjoying their music is evidence of gang affiliation . . .  We take this opportunity to remind courts to be far more cautious when drawing conclusions from a defendant’s musical preferences.”  This scathing wisdom reminded courts to be careful when admitting generalized evidence about gang affiliation.  “Such evidence is often highly prejudicial and must be tightly constrained to comply with the rules of evidence.”

Finally, the Court ruled that much of the generalized “gang evidence” was irrelevant and prejudicial, and thus should not have been admitted. The court reasoned that, under ER 402, evidence which is not relevant is not admissible. Here, the gang evidence produced by the State’s gang expert witness was highly prejudicial:

“We agree and urge courts to use caution when considering generalized gang evidence. Such evidence is often highly prejudicial, and must be tightly constrained to comply with the rules of evidence.”

With that, the WA Supreme Court held the defendant was entitled to a new trial. Therefore, the Court reversed the convictions and gang aggravators.

My opinion? I really enjoyed the rulings in this case. Sometimes, mainstream culture and music can be misconstrued as “gang evidence” when said music/culture is heard/exhibited by minorities. The Court attacked this veiled racism. Good on them. Also, they made good rulings on the 5th Amendment issues. A defendant’s gang affiliation when being booked into jail is a matter of personal security. The information should not be admitted at 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.

State v. Hardtke: Court Limits Costs of Pretrial Monitoring

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Electronic Monitoring | Electronic Frontier Foundation

In State v. Hardtke, the WA Supreme Court decided that although a trial court has the authority under RCW 10.01.160 and CrR 3.2 to impose the cost of pretrial electronic alcohol monitoring, the amount is capped at $150.00.

Here, Mr. Hardtke was charged with two counts of Rape in the Second Degree, one count of Assault Second Degree, two counts of Assault Fourth Degree, and Malicious Mischief Third Degree. All were alleged to be acts of domestic violence that took place while Hardtke claimed he was blacked out from alcohol abuse.

At arraignment, the trial court imposed conditions that Hardtke not consume alcohol. To ensure his compliance with this condition, Hardtke was required to wear a transdermal alcohol detection (TAD) electronic alcohol monitoring bracelet while awaiting trial. Hardtke objected multiple times to paying for the cost of the bracelet, but he nevertheless wore the bracelet as a condition of his release.

Eventually, Hardtke pleaded guilty to amended charges, and as part of his sentence he was ordered to reimburse the county for the cost of the alcohol monitoring; which totaled $3,972.00. Hardtke objected and appealed the court’s ruling. The case ended up in the WA Supreme Court.

In reaching its decision, the WA Supreme Court reasoned that RCW 10.01.160 authorizes courts to impose “pretrial supervision” costs on both convicted and non-convicted defendants; however, it expressly limits pretrial supervision costs to $150. The court further reasoned that paying the costs was unreasonable:

Hardtke himself did not arrange for the TAD monitoring and did not agree to pay a third-party company for the service. On the record before us, the sentencing court imposed a cost on Hardtke for pretrial electronic alcohol monitoring in order ensure compliance with the release condition that he not consume alcohol. We find no support for the State’s argument under CrR 3.2.

The court further reasoned that TAD monitoring falls under the plain meaning of “pretrial supervision.” This includes work release, day monitoring, or electronic monitoring. The court emphasized that TAD monitoring operates like other monitoring devices, such as GPS (global positioning system) monitoring. It ensures compliance with the pretrial release conditions by supervising Hardtke’s conduct and reporting his blood alcohol levels. This monitoring, the court said, is functionally analogous to requiring a defendant awaiting trial to physically check in with the court or county probation officer to demonstrate that pretrial release conditions have been complied with.

The court concluded that RCW 10.01.160 limits the court’s authority to impose costs for pretrial supervision to $150. “Because we hold that the TAD monitoring costs imposed on Hardtke were for pretrial supervision, and because those costs were greater than $150, the trial court exceeded its statutory authority by imposing nearly $4,000 for Hardtke’s pretrial supervision.” The Court remanded Hardtke’s case back to the trial court with instructions that costs for pretrial supervision in this matter not exceed $150.00.

My opinion? Good decision. Defendants should not pay an arm and a leg simply to be monitored by courts, ESPECIALLY if there’s statutory authority stating that pretrial supervision shall not exceed $150. Getting access to justice is difficult enough. Good, straightforward 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.

Washington Legislature Passes Bill Supporting DNA Testing of Rape Kits.

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That was me on the shelf': Maryland lawmakers weigh legislation requiring rape kits be tested - Baltimore Sun

On March 2, 2015, the Washington House Appropriations committee voted “Yes” on House Bill 1068; which supports DNA testing of rape kits sitting in evidence rooms across Washington Counties. The bill passed 82-15.

Essentially, numerous Washington counties – including Whatcom County – could help find serial rapists. House Bill 1068 arrives on the heels of recent controversy that rape kit evidence containing DNA evidence has been ignored by police departments statewide.

The Bellingham Herald ran two articles on this news. One story, titled Prosecutor: Testing Evidence Kits Can Lead to Finding Repeat Rapists discussed people’s responses to House Bill 1068.

The article mentions that Prosecutors like Rick Bell of Ohio support House Bill 1068. He claims that out of 6,000 kits tested, 2,244 received a hit to a known offender in a national database. Additionally, of the rapists indicted by his his office in Cuyahoga County, 30 percent are serial rapists. “Those serial offenders were going undetected, in part because labs couldn’t process all cases, so kits involving acquaintance rapes weren’t tested,” said Bell.

Also according to the article, Western Washington University college students like Heather Heffelmire, who is working in Olympia as the Legislative Liaison for Western Washington University’s Associated Students, testified in favor of House Bill 1068 during a public hearing in January. She said one of the main legislative priorities for WWU’s student body this year is to support survivors of sexual violence. “If you think about assault on campuses, it’s not like a predator does one assault — it’s usually a pattern of behavior,” Heffelmire said. “If you’re not having these kits tested, you can’t find that out.”

Additionally, Leah Gehri, the Director of Emergency Services at St. Joseph hospital in Bellingham WA, said she thinks HB 1068 is timely. “When you think about how long DNA evidence has been around, … at one point there weren’t a lot of DNA profiles hanging out there, they just didn’t have a lot of them,” Gehri said. “Now however, 20 years later, when profiles are quite common, the likelihood that an untested kit would now match up against a perpetrator in the system is more likely than it ever has been.”

Another article from the Bellingham Herald titled, Washington Lawmaker Tries to Tackle Thousands of Untested Rape Kits in State discusses the efforts of Rep. Tina Orwall, D-Des Moines toward having House Bill 1068 passed. 

The specific language House Bill 1068 is as follows:

Substitute offered in the House on January 23, 2015, requires a law enforcement agency to submit a request for laboratory examination within 30 days of receiving a sexual assault examination kit, provided that the victim or the victim’s legal guardian has consented to analysis of the kit as part of a sexual assault investigation. Specifies that failure to comply with the 30-day deadline does not create a private right of action against the law enforcement agency and is not a basis to exclude evidence in a court proceeding or to set aside a conviction or sentence. Creates a work group to study the issue of untested sexual assault examination kits in Washington, which must file an annual report through June 30, 2018.

My opinion? As a defense attorney, I support the notion that evidence garnered from the DNA testing of rape kits could be probative, relevant and cumulative in proving that the the perpetrator had a pattern of rape. Nevertheless, I have two concerns:

First, while I understand and agree with intent to have kits processed as quickly as possible, the timelines set forth in this proposal are probably unattainable with existing resources and do not take into account the complexities of processing kits. The 30-day timeline is very problematic for crime labs and is not feasible without a huge influx of resources (equipment, personnel, and possibly larger facilities).

Second, House Bill 1068 does not take into account the multitude of legal circumstances surrounding these kits.  For example, in a number of rape cases, the identity of the involved parties is not in question and both parties affirmatively indicate a sexual act occurred. Here, the issue is consent, not identity. Consequently, DNA analysis would only confirm what is already known.

In all likelihood, the latter issue will rest on the shoulders of jury trial judges who decide pretrial motions to admit or suppress DNA evidence in rape cases. In other words, we’ll see what happens . . .

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. Weller: Community Caretaking

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Community Caretaking: Police May Make Stop Without Reasonable Suspicion

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children.

Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime.

However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a Child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (2) a reasonable person in the same situation would believe that there was a need for assistance, and ( 3) there was a reasonable basis to associate the need for assistance with the place searched. Next, the State must show that the encounter under this exception was reasonable, which depends upon a balancing of the individual’ s interest in freedom from police interference against the public’ s interest in having the police perform a community caretaking function.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld the 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. Walker: Shackled Defendants

Assault, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Homicide & Manslaughter, Jail, Jury Trial, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Judges now deciding daily if inmates should wear shackles in court - oregonlive.com

Interesting case on shackled defendants appearing at non-jury hearings . . .

In State v. Walker, the Court of Appeals decided a trial judge can decide whether and how a prisoner should be restrained by shackles in the courtroom.

Here, the defendant Vernon Walker pleaded guilty to one count of Murder in the Second Degree and one count of Assault in the Second Degree arising from a 2003 shooting. At his sentencing hearing, jail security officers transported him to court wearing handcuffs and leg restraints. The trial court denied Walker’s motion for an order removing the handcuffs for the hearing. On appeal, Walker argues that the denial of his motion violated his constitutional right to appear before the court free of physical restraint. He also argued for a new sentencing hearing.

On appeal, Walker argued he had a constitutional right to appear in court free from restraints, regardless of whether a jury was present, and that there was no factual basis to support his shackling. He contended that because he had no history of disrupting court proceedings or attempting to escape from the courtroom, there was no reason to believe that he would do so at his sentencing hearing. He argued that the State’s claims otherwise were speculation. Walker also asserted that restraints would dehumanize him and prejudice the sentencing judge.

 Despite Walker’s arguments, the Court of Appeals disagreed. They reasoned a trial judge has sole authority over whether and how a prisoner should be restrained in the courtroom. Furthermore, even though the law strictly forbids defendants from appearing before juries wearing shackles, a court may shackle a defendant at non-jury hearings on a “lesser showing” than is required to shackle a defendant during a jury proceeding. Finally, the court reasoned that restraints are permissible in non-jury hearings to prevent injury to people in the courtroom, disorderly conduct at trial, or escape.

My opinion? This is a tough case. It is well settled that in a proceeding before a jury a criminal defendant has a constitutional right to appear free from restraints or shackles of any kind. In State v. Williams, the defendant’s conviction for burglary was reversed because the trial court, without justification, denied the defendant’s motion that he and his witnesses be unshackled before the jury during the trial. The Williams court cited article 1, section 22 of the Washington State Constitution which provides “In criminal prosecutions the accused shall have the right to appear and defend in person,” and stated:

The right here declared is to appear with the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Here, in the Walker case, the Court of Appeals distinguished its reasoning from Williams to the extent that Williams only applied to times when the defendant was before the jury. Otherwise, for non-jury hearings, judges have full authority to decide whether defendants must appear in restraints and shackles.

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.