Category Archives: Assault

Whatcom County Domestic Violence Filings Increase

Assault, Domestic Violence, felony, law enforcement, misdemeanor, police, , ,

Coronavirus: Domestic violence 'increases globally during lockdown' - BBC News

The Bellingham Herald reported that in 2012, more protection orders were filed in Whatcom County. Also, more people were booked into jail for Domestic Violence.

This information was found in the 10th Annual Report About Domestic Violence. Report highlights for 2012 included the following:

* Law enforcement reported 1,387 domestic violence offenses in Whatcom County, down slightly from 1,422 in 2011. Nearly 55 percent were assaults and 30 percent were violations of protection or no-contact orders.

* The number of domestic violence protection orders filed in Whatcom County courts went up in 2012. At 427, it was the highest since 2004.

* Domestic violence made up 20 percent of Whatcom County Jail bookings in 2012, an increase from previous years and double the 10 percent of all jail bookings in 2011.

My opinion? Domestic violence is an AWFUL dynamic to have in a relationship. The effects of domestic violence wreak havoc on relationships, reputations and families.

However, most couples are not involved in ongoing domestic violence relationships. The vast majority of these situations involve a couple who argued a little too passionately, perhaps under the influence, and police are contacted. Unfortunately, when the criminal justice system gets involved, the wheels are very hard to stop.

For example, most people are unaware that under RCW 10.99, officers MUST arrest a primary aggressor and immediately take them to jail. Additionally, most defendants MUST move out of their own homes while the case is pending. This is a substantial hardship.

And defendants who are convicted of domestic violence crimes risk being incarcerated, paying court fines and restitution, obtaining domestic violence evaluations, undergoing treatment, being monitored by probation, losing their gun rights, and obeying court orders preventing them from communicating with family members. Finally, a domestic violence conviction carries a negative stigma which may deter employment opportunities.

Take my word, these types of charges probably won’t get reduced or dismissed quickly. Most prosecutors and judges want to continue these cases out to see if people will violate no-contact orders. Indeed, many defendants end up facing more criminal charges if they accidentally or intentionally violate a no-contact order. A vindictive and/or vengeful “victim” may invite communication and persuade a defendant to violate the court’s no-contact order.

I’ve seen this happen many times. And once a victim has proof that a contact happened, they can – and most will – contact the police and pursue additional charges of Violating a No-Contact Order (NCOV). These are particularly nasty charges which are very difficult to defend against. An NCOV charge damages the defendant’s bargaining position in reducing and/or dismissing the underlying domestic violence charge that got them in trouble in the first place!

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. Werner: Who Let The Dogs Out?

911 Call, Animal Abuse, Assault, Constitutional Rights, felony, Firearm, Jury Trial, Self-Defense, Washington Court of Appeals, , ,

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In State v. Werner, the WA Supreme Court held that a defendant is entitled to a jury instruction on self-defense in the prosecution for first degree assault after accidentally discharging a firearm when confronted by a neighbor’s pack of dangerous dogs.

“Victim” Daniel Barnes moved to the property next door to to defendant Gary Werner. Almost immediately, Werner and Barnes  began an ongoing property dispute concerning a shared easement.  Barnes kept seven dogs on Barnes’s property, including a Rottweiler and pit bulls. At least  three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs.

The property dispute  intensified.  On the day of the incident, Werner was on his property in the easement area when one of Barnes’s pit bulls approached him, baring its teeth. Werner noticed six other dogs with the pit bull, including the Rottweiler and other pit bulls.  The dogs started circling Werner.  He pulled out his pistol, thinking he could scare the dogs, and started yelling for Barnes to call off the dogs.  Werner panicked and called 911 on his cell phone, but due to his arthritis, the gun went off, discharging into the ground.  The police were contacted.

The State charged Werner with Assault First Degree and Malicious Harassment. The jury acquitted him of the Malicious Harassment charge but found him guilty of Assault First Degree.  He appealed.  The case ended up before the WA Supremes.

The Court reviewed the law on self-defense.  “To prove self-defense, there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted).

The Court reasoned that here, Werner stated that he was afraid. That fear was arguably reasonable, given that he was facing seven snarling dogs, including several pit bulls and a Rottweiler.  Pursuant to State v. Hoeldt, 139 Wn. App. 225, 160 P.3d 55 (2007), a pit bull can be a deadly weapon under RCW 9A.04.110(6). There is evidence that Barnes’s friend refused requests to call off the dogs. By that conduct, Werner could reasonably have believed that Barnes’s friend personally posed a threat through the agency of a formidable group of canines that were under his control.

As to the firing of the weapon, the WA Supremes believed Werner’s accounting that it was an accident.  They found sufficient evidence of both accident and self-defense to warrant instructing the jury on self-defense.  “Since the outcome turns on which version of events the jury believed, the failure to give a self-defense instruction prejudiced Werner.” Accordingly, the WA Supremes reversed Werner’s conviction.

My opinion?  Good decision.  A pack of wild dogs surrounding and growling at you definitely warrants self-defense.  That’s a no-brainer!  The “victim” is lucky none of his dogs were killed.

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.

City of Aberdeen v. Regan: When Unfound Accusations Violate Probation

Assault, Jury Trial, misdemeanor, Probation, Washington Supreme Court, , ,

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In City of Aberdeen v. Regan, the WA Supreme Court held that a defendant’s probation conditioned on having “no criminal violations of law or alcohol related infractions,” was properly revoked after the defendant was accused, but found not guilty, of fourth degree assault and criminal trespass.

In this case, Regan was convicted of fourth degree assault in Aberdeen Municipal Court and sentenced to 365 days in jail.  The court suspended 360 days of Regan’s sentence, issued 5 days jail,  and placed him on probation for 24 months.  The court conditioned Regan’s probation on his having “no criminal violations of law or alcohol related infractions.”

However, while on probation, Regan was charged with fourth degree assault and criminal trespass.  Regan was acquitted at a trial.  However, the city moved to revoke the suspension of his sentence asserting that he violated the condition of his probation.  Regan argued that the municipal court was collaterally estopped from finding he violated his probation condition in light of the not guilty verdict at trial.  The municipal court disagreed and issued 5 days of jail based on the criminal trespass charge.  Although the Superior Court found in Regan’s favor, the Court of Appeals reversed.

Some background is necessary.  Under WA law, in order to revoke probation, the judge need only be “reasonably satisfied” that the defendant committed the assault and/or the criminal trespass.  The defendant is not entitled to make the City/State prove allegations beyond a reasonable doubt.

Here, the WA Supremes reasoned that acquittal on criminal charges stops does not stop (or, more specifically, collaterally estop) a court from revoking parole for the same conduct.  The Court looked at the plain language of Regan’s probation conditions and flatly decided the conditions prohibited him from engaging in conduct that is proscribed by the criminal law.  “In no way do the definitions of “violate” or “violation” imply a proof or procedural requirement.”  Therefore, when a court conditions the suspension of a sentence on a probationer not violating the law, the context does not imply that a conviction is required.

My opinion? It’s really disturbing when judges revoke a defendant’s probation when s/he obtains criminal charges that haven’t been proven guilty in a court of law.  I’ve never understood that.  It’s a major flaw of the criminal justice system.

It seems more fair that someone who has invested the time and expense of fulfilling their probation requirements – meeting with probation officers, obtaining evaluations, making court payments, obtaining treatment, etc. – falls in danger of getting kicked off probation if police and/or prosecutors file B.S. charges that have not been proven in a court of law under the reasonable doubt standard.

Despite WA law, I believe that criminal charges must be proven in order to revoke a defendant’s probation.  The status quo simply gives the police and prosecutors too much power.

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.

Domestic Violence Brutality Increasing in Whatcom County

Assault, Bellingham, Bellingham Defense Attorney, Domestic Violence, felony, Jail, law enforcement, misdemeanor, police, Studies, , ,

Domestic violence is now out in the open but the figures show just how endemic it is

It appears DV cases are increasing in Whatcom County. An unprecedented series of domestic-violence slayings in the last 15 months has set off alarms across the county and left community leaders scrambling to gauge the problem’s extent and root causes.
The Bellingham Police Department and the Whatcom County Sheriff’s Office handle the majority of domestic-violence assaults in the county.  Although both agencies had an overall decrease in the number of such assaults per capita reported to them since 2004,
Sheriff Bill Elfo says the severity of the crimes have, in fact, increased.
Some other interesting facts:
* Whatcom County law enforcement agencies have investigated eight deaths believed to be related to or caused by domestic violence since March 2009.
* Workers in victim-care agencies confirmed the trend of increasing violence.
* The number of women and children who stayed at least one night in the shelter’s 18 beds increased by 17 percent from 2008 to 2009, according to agency statistics.
* Calls to Womencare’s helpline increased 28 percent last year.
Why has the problem increased?  The article cites the poor economy adding to the problem and hampering criminal-justice and victim-care agencies’ ability to prevent more violence.  The economy also hampers efforts to confine abusers as the justice system, from police to jails to courts, struggles under budget cuts.  For victims trying to leave abusive relationships, which is when they’re at the highest risk, emergency shelter and long-term transitional housing are getting scarcer as demand for them increases.

Please contact my office if you, a friend or family member are charged with DV or and other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Yes, Crime Is Down . . . But For How Long?

Assault, Domestic Violence, felony, Homicide & Manslaughter, Rape, Studies, Violent Crime, Whatcom County Criminal Defense, , ,

NRA-ILA | Stemming the Tide: Violent Crime Decreased in First Six Months of 2017

My opinion?  That’s good news.  It debunks any theories that economic recessions leads to increased crime rates.  I, for one, haven’t seen a dramatic increase in crime – except for maybe low-level street drugs like heroin – since the recession hit.  Still despite the successful efforts of law enforcement’s endeavors, we should not be too quick to pat ourselves on the back.

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. Hall: WA Supremes Determine The “Unit of Prosecution” For Multiple Charges of Witness Tampering.

Assault, Burglary, Constitutional Rights, Due Process, felony, Legislation, Unit of Prosecution, Violent Crime, Washington Supreme Court, , ,

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In State v. Hall, the WA Supreme Court decided that an incarcerated defendant’s numerous phone calls to a witness constituted only one charge of Witness Tampering.

Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment.  He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc.  Police later confront Aquiningoc about lending her car to Hall.  She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother.  Later, police find Hall at his home and arrest him.

Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial.  While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.

The phone calls were recorded.  The State charged Hall with four counts of Witness Tampering.  Hall goes to trial.  The trial judge treated each count of Witness Tampering as a separate unit of prosecution.  Hall appeals.  The case winds its way to the WA Supreme Court.

The legal issue was whether Witness Tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely.

The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct.  Here, the plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding.  They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.

“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court.  “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.”  Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.

My opinion?  Makes sense.  It DOES seem absurd to stack multiple charges in this case.  After all, a unit of prosecution can either be a single act or a course of conduct.  It seems more realistic to view Halls many calls as a continuing course of conduct.  You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.

Good decision.

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

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

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

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

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

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

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

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

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

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

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

Consequently, the Court upheld Hammocks guilty verdict.

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

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

Whatcom County Jail Gets Record Number of Inmates

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

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

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

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

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

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

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

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

A tough nut to crack.

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

State v. Erickson: Probation Officers Have Too Much Power

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

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

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

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

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

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

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

State v. Pugh: WA Supremes Admit “Excited Utterance” Hearsay Evidence of 911 Call; Disregard State v. Crawford

911 Call, Assault, Constitutional Rights, Domestic Violence, Evidence, felony, Jury Trial, Washington Supreme Court, , ,

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In State v. Pugh, the WA Supreme Court admitted “Excited Utterance” hearsay evidence of a 911 call, thus disregarding State v. Crawford.

Defendant Timothy Pugh and his wife Bridgette are married.  They had problems.  In November 2004, she obtains a no-contact order (NCO) against him.  On March 21, 2005, and in violation of the NCO, the Pughs were together at a friend’s apartment.  At 3:13 a.m., she calls 911 and states, “My husband was beating me up really bad.”

She provided his description.  When the operator asked her whether he was still there, Mrs. Pugh said, “He’s just outside.” She again reported being beaten, but this time stated it in the present sense.  She also said she needed an ambulance.  The call terminated when police officers arrived.  Mrs. Pugh had a bruised face and a chipped tooth.  The officers soon arrested Mr. Pugh in the parking lot outside the apartment where Bridgette was.

Before trial, the State delivered a subpoena to Mrs. Pugh.  However she refused to arrive and/or testify at trial.  Despite her decision, and in clear violation of State v. Crawford (2004 case where WA Supremes upheld the Confrontation Clause and dismissed a case where the State’s victim/witness refused to testify) , the trial court admitted her 911 call as evidence.  Pugh was convicted of felony violation of the court order, domestic violence.

 The WA Supremes held Mrs. Pugh’s statements to the 911 operator were nontestimonial, and therefore admission of a recording of the 911 call at Mr. Pugh’s trial did not violate his right to confrontation under the Sixth Amendment.  They reasoned that her statements qualify as res gestae under the res gestae doctrine as it applied at the time the state constitution was adopted.

They further argued that statements of this type do not implicate the state confrontation clause.  Because the statements are nontestimonial and do not implicate article I, section 22, admission of the 911 recording violated neither the federal nor the state confrontation clause.

My opinion?  I hold the same disdain as Justice Sanders’ dissenting opinion.  Article I, Section 22 of the WA Constitution states, “In criminal prosecutions the accused shall have the right . . . to meet the witnesses against him face to face . . .”  This is the essence of the Confrontation Clause.

And, to quote Justice Sanders, “What is there about face to face that the majority opinion does not understand?”  Crawford applies – and cases get dismissed – if a victim refuses to testify.  Period.  Here, the victim refused to testify.  Nevertheless, and in total violation of Crawford, the majority pulls out some archaic res gestae analysis, breathes life into it, and totally stomps the heck out of Crawford.

 Unbelievable.

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.