Category Archives: Burglary

Confrontation, Video Testimony & COVID

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In State v. Milko, the WA Court of Appeals held that a defendant has a right to have witnesses present in the courtroom. However, that right can be overcome. Here, the trial court lawfully allowed witnesses to testify by video when they had health related concerns about contracting COVID-19.

FACTUAL BACKGROUND

In 2018, Milko on five separate occasions contacted women who were paid escorts. He
arranged to meet them at houses in Puyallup that he did not live in or own. When each
woman arrived, Milko displayed a knife in an attempt to take their money or to rape them.

The State charged Milko with 12 felony offenses related to five incidents and five
victims. The charges included Burglary, Robbery and Sex Offenses.

Milko’s trial was set for July 2020. At the time, COVID-19 had been declared a global pandemic and a national emergency in the United States. In February 2020, Governor Jay Inslee had proclaimed a state of emergency in Washington. He issued a number of proclamations designed to help curb the spread of COVID-19. The Supreme Court ordered all courts to follow the most protective public health guidance applicable in their jurisdiction and to use remote proceedings for public health and safety whenever appropriate.

Also, the CDC and the Washington Department of Health recommended social distancing measures of at least six feet between people and encouraged vulnerable individuals to avoid public spaces. The CDC encouraged people to avoid traveling because travel increased a person’s chance of getting infected and spreading COVID-19. The CDC noted that older adults and people of any age with serious underlying medical conditions, such as diabetes and asthma, were at a higher risk for severe illness from COVID-19.

The trial court granted the State’s request to allow two State’s witnesses to testify remotely. One witness was SANE nurse Ms. Biddulph. The other witness was victim JA.

At trial, the five victims and several investigating officers testified in person about the
incidents giving rise to the charges. Biddulph testified by two-way video about examining BP and completing a rape kit for her. JA testified by two-way video about Milko contacting her for her paid escort services in Florida and raping her at knifepoint. The trial court instructed the jury that the State was offering JA’s testimony only to establish identity, a common scheme or plan, and/or modus operandi.

The jury found Milko guilty of all charges except for attempted first degree robbery. He appealed on arguments that the trial court violated the confrontation clause by allowing witnesses to testify by video because of COVID-19 concerns.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals (COA) explained that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that a person accused of a crime has the right “to be confronted with the witnesses against him.” Nevertheless, the COA quoted  Maryland v. Craig, and other cases holding that video testimony does not violate the confrontation clause if it ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Here, the COA upheld the trial court’s findings that Biddulph’s traveling to Washington would place her and her children at risk of negative health consequences regarding COVID-19 were warranted. Biddulph in particular had health concerns about her one year-old daughter, who had compromised health. And the court made a finding that Biddulph’s health care provider “advised against travel in order to protect the health of Ms. Biddulph and her small child.” The court’s ultimate finding was that Biddulph could not travel to Washington to testify because travel will place her at a significantly higher risk of exposure to the virus.

“Accommodating Biddulph’s health concerns was more than a matter of convenience,” said the COA. In addition, it reasoned that concern for the health of a third person may be sufficient to support a finding of necessity. “This is especially true in a pandemic. Given the nature of the COVID-19 pandemic, the risk to the health of Biddulph and her child if Biddulph was required to travel to Washington was significant and more than de minimis.”

The COA also found that the trial court found that JA’s health concerns due to her diabetes and asthma were warranted. These conditions would “place her at a higher risk of suffering severe health consequences if she were to contract COVID 19.”  Further, the COA upheld the trial court’s findings that JA’s conditions “make it difficult, if not impossible, to wear a face mask for an extended period of time, including on a cross-country flight.” The court’s ultimate finding was that “J.A.’s health is currently compromised, and she is at a higher risk of serious medical complications should she contract COVID-19.”

“We conclude that these findings support the conclusion that video testimony was necessary to protect JA’s health. Accommodating JA’s health conditions was more than a matter of convenience. Given the nature of the COVID-19 pandemic, the risk to JA’s health if she was required to travel to Washington was significant and more than de minimis.” ~WA Court of Appeals.

The COA concluded that the trial court did not err in allowing Biddulph and JA to testify remotely by video and their testimony did not violate Milko’s confrontation right. Consequently, the COA affirmed Milko’s convictions and sentence.

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.

Auto Dealership Burglaries Are On the Rise

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Apparently, auto dealers and repair shops are increasingly becoming a target of burglars around the Puget Sound region. Car thieves have become more brazen and aggressive in their attempts to profit from auto dealerships, whether stealing whole cars or stripping them of valuable parts.

Journalist Nicole Jennings reports that Western Washington burglars are reportedly breaking into dealerships and mechanics’ shops, often by ramming their cars into service entrances. Also, journalist Sebastian Robertson reported that a car dealership in Fife has suffered multiple break-ins. In one case, suspects made off with several sets of keys, only to return days later.

The object of the burglary usually appears to be the keys to the cars on site — either the dealership’s own cars or the keys that people drop off when having their cars worked on. The criminals steal the cars at the time of the burglary, or return later for them. This recently happened at Nissan of Olympia, when burglars rammed a car into the service entrance to get in.

The Puget Sound Auto Theft Task Force, made up of police officers from different agencies, is putting a special emphasis toward catching the burglars. PSATT is dedicated to investigating prolific auto theft offenders through multi-agency cooperation. The task force is recommending that auto dealers and repair shops put any keys dropped off after hours in a safe or similar secure storage system, so they could not be easily accessed by trespassers. The task force also suggests upgrading video systems and keeping parking lots well-lit.

Here are the Top 10 Burglary Statistics is 2022 according to Bankrate.com:

  1. Over 1 million burglaries are committed each year in the US, according to the FBI.
  2. Most recently, 1.1 million burglaries took place in 2019, down 9.5% since the previous year.
  3. One burglary happens every 25.7 seconds, so approximately 3,300 per day.
  4. The average value of property taken during burglaries is about $2,600, making the total cost of burglaries in 2019 about $2.9 billion.
  5. Burglars are drawn to homes that do not have home security systems. Homes that don’t have a security system are 300% more likely to be burglarized (Alarms.org).
  6. Unfortunately, less than 30% of homes have an effective security system installed (Security.org).
  7. 27% of the time, a person is home while the burglary occurs; 26% of those people home are harmed.
  8. Someone was injured in 7.2% of all burglaries committed.
  9. In 85% of burglaries, the crime is committed by amateurs, often done by someone who is desperate. It is assumed these amateurs are more unpredictable and dangerous than professional thieves.
  10. Despite the grim statistics burglaries have declined by 49% in the last 20 years, according to FBI data.

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

Cell Site Location Info

Find Your Nearest Cell Tower in Five Minutes or Less: 2021 Edition
In State v. Denham, the WA Supreme Court held there was a sufficient nexus between the defendant’s seized phone records and the suspected criminal activity to support the issuance of a search warrant.
BACKGROUND FACTS
A valuable diamond was stolen from a jewelry store. Within days, the Defendant Mr.  Denham sold that diamond. Police suspected Denham committed the burglary and got a warrant for his cell phone records. Cell site location information included in those phone records placed Denham’s phone near the jewelry store around the time of the burglary.
Mr. Denham was charged and ultimately convicted with second degree burglary and first degree trafficking in stolen property. At Denham’s bench trial, The trial judge cited the
fact that Denham had made phone calls that were routed through the cell tower in
the parking lot of the jewelry store around the time of the burglary. Ultimately, the trial judge found Denham guilty as charged.
Mr Denham appealed his case to the WA Court of Appeals. He challenged the admissibility of the search warrant and the evidence it produced. His argument was that the warrant based on generalizations and did not establish that evidence of wrongdoing would likely be found in his phone records. The WA Court of Appeals agreed with Mr. Denham. The State, however, filed its own appeal. And Mr. Denham’s was heard in the WA Supreme Court.
COURT’S ANALYSIS & CONCLUSIONS
The WA Supreme Court began by discussing the admissibility of cell phone records.
“Our constitutions protect individual privacy against state intrusion,” said Justice Gonzalez, who authored the opinion.  He said that under the U.S. Constitution and WA State Constitution, police must have either the authority of a warrant or a well-established exception to the warrant requirement to lawfully intrude into an individual’s private affairs.
“This constitutional protection extends to cell phone location information held by cell phone companies,” said Justice Gonzalez.  He acknowledged that time-stamped data contained in cell phones provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.
Next, Justice Gonzalez described how a search warrant should be issued only if it shows probable cause that the defendant is involved in criminal activity and that evidence of the criminal activity will be found in the place to be searched. “There must be a nexus between criminal activity and the item to be seized and between that item and the place to be searched,” he said. “The warrant must also describe with particularity the place to be searched and the things to be seized.”
With that, Justice Gonzalez reasoned that the search warrant affidavits were proper:
“These affidavits present reasonable grounds to believe that the phones associated with the phone numbers belonged to Denham based on Denham’s own use of the numbers with his probation officers and with various businesses, that Denham had the phones around the time of the burglary because of specific facts suggesting he had the phones days before and after the date in question, that Denham burgled the store, and that Denham trafficked distinctive pieces stolen from the store. They also allege that Denham had both phones at the time of the burglary and used one to arrange the sale of the diamond that was the basis of the trafficking charge.
Taken together, this is sufficient to raise a reasonable inference that evidence of burglary would be found in the cell site location information . . . The fact that there are some generalizations in the inferential chain does not defeat the reasonableness of the inference.” ~Justice Gonzalez, WA Supreme Court
Justice Gonzalez concluded by holding that the search warrant contained sufficient detail to conclude that evidence of a crime would more likely than not be found in the cell site location information in telephone company records of Denham’s cell phones.
Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Denham’s convictions.

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

FBI Releases 2019 Hate Crime Statistics

Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.

Police Stop Booking Some People Into Whatcom Jail Due To Coronavirus

Image result for walk out of jail free coronavirus

Whatcom County law enforcement agencies stopped booking people into the Whatcom County Jail for certain crimes on Thursday, March 19, due to the coronavirus outbreak.

Apparently, people arrested will be booked and released for everything except certain offenses that represent a serious threat to public safety. Those crimes include domestic violence, violations of a no-contact order, felony DUI, sex offenses, burglary and other violent crimes. Those booked for misdemeanor DUI will be held until sober.

The memo suggests officers arrest, book and release people when they can, giving them notice of when to appear in court. And those who are booked on charges that pose a threat to public safety will be held until they see a judge.

At this point, seven Whatcom County residents have been diagnosed with the respiratory illness, one of whom died, according to the Whatcom County Health Department.

Whatcom County Sheriff Bill Elfo said the measures are looking out for the health of the people who work in the jail, as well as those incarcerated there.

“They’re in place because of some compelling public safety and public health issues. We want to prevent the spread of COVID-19, but do it in a way that doesn’t minimize public safety. We’re still booking and holding violent people. These are temporary measures . . . We’re trying to take the jail population as low as we can safely and reasonably do under the circumstances.” ~Sheriff Bill Elfo

Please contact my office if you, a friend or family member face criminal charges and are jailed indefinitely in the midst of the Coronavirus Pandemic. Obviously, getting released as soon as possible is a major priority. And hiring an experienced attorney is the first and best step toward justice.

A Snowmobile Is Not a Motor Vehicle

Image result for snowmobile theft

In State v. Tucker, the WA Court of Appeals held that a snowmobile is not a motor vehicle for purposes of RCW 9A.56.65, which makes it a class B felony to commit theft of a motor vehicle.

BACKGROUND FACTS

In February 2016, Ms. Tucker and her accomplice broke into a cabin near Stampede Pass. The cabin was accessible only by snowmobiles. The pair stole several items of personal property, including a snowmobile.

The State charged Ms. Tucker with residential burglary, second degree theft, theft of motor vehicle, and third degree malicious mischief. A jury found Ms. Tucker guilty of first degree criminal trespass and theft of motor vehicle, but could not reach a verdict on the charge of second degree theft. The trial court declared a mistrial on that count, and it later was dismissed without prejudice.

Defense counsel, relying on State v. Barnes, filed a motion to arrest judgment on the theft of a motor vehicle conviction. The trial court denied the motion on the ground that the snowmobile was licensed and has a motor. Ms. Tucker timely appealed this aspect of her conviction.

COURT’S ANALYSIS & CONCLUSIONS

In short, the Court of Appeals reviewed existing caselaw under State v. Barnes and concluded that, similar to the riding lawn mower in the Barnes case, a snowmobile is not a motor vehicle.

“Here, a snowmobile is not a car or other automobile. To paraphrase the Barnes lead opinion, the legislature was responding to increased auto thefts, not increased snowmobile thefts.”

The Court of Appeals rejected the State’s argument that the stolen snowmobile should be classified as a motor vehicle because at the time and place it was stolen, a snowmobile was the only vehicle capable of transporting people or cargo. It reasoned that transporting people or cargo is not the touchstone agreed to by six justices in the Barnes Case.

“The concurring justices never stated that transporting people or cargo was a relevant consideration,” said the Court of Appeals. “Also, the lead and concurring justices also required the vehicle to be a car or other automobile. A snowmobile obviously is not a car or other automobile.”

The Court of Appeals concluded that because a snowmobile is not a car or other automobile, a snowmobile is not a motor vehicle for purposes of the statute. The Court reversed Ms. Tucker’s conviction for theft of motor vehicle and instructed the trial court to dismiss that conviction.

My opinion? Excellent decision. The Court appropriately relied on the Barnes decision and made the right 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.

Necessity Defense vs. Climate Change

In State v. Ward, the WA Court of Appeals held that a defendant who was charged with burglary in the second degree after he broke into a pipeline facility and turned off a valve, which stopped the flow of Canadian tar sands oil to refineries in Skagit and Whatcom Counties, was entitled to argue a necessity defense to the jury. The defendant contended that his commission of the crime was necessary to avoid harm to the climate, as governments had failed to meaningfully address the crisis of climate change.

BACKGROUND FACTS

Kinder Morgan transports tar sands oil from Canada into the United States by pipeline. On October II, 2016, Kinder Morgan was notified by telephone that persons “would be closing a valve, one of our main line valves in the Mount Vernon area within the next 15 minutes.” Following the call, Ward cut off a padlock and entered the Kinder Morgan pipeline facility off of Peterson Road in Burlington, WA. Ward then closed a valve on the Trans-Mountain pipeline and placed sunflowers on the valve. At the same time, other protesters closed similar valves in North Dakota, Montana, and Minnesota. Collectively, the protests temporarily stopped the flow of Canadian tar sands oil from entering into the United States.

Ward was arrested at the pipeline facility and charged with burglary in the second degree, criminal sabotage, and criminal trespass in the second degree. Ward admitted his conduct but argued that his actions were protected under a necessity defense. The trial court granted the State’s pretrial motion in limine to preclude all witnesses and evidence offered in support of Ward’s necessity defense.

Ward’s first trial ended with a hung jury. The State then recharged Ward with burglary in the second degree and criminal sabotage. Ward moved for reconsideration of the trial court’s order granting the State’s motion in limine. In support of his motion, Ward offered argument, the curriculum vitae for eight proposed expert witnesses, and voluminous scientific evidence documenting the impacts of climate change, that climate change is primarily caused by greenhouse gas emissions resulting from human activity, and the contribution of burning tar sands oil.

The trial court denied Ward’s motion for reconsideration and excluded all testimony and evidence in support of Ward’s necessity defense. A second jury found Ward guilty of burglary but were unable to return a verdict on criminal sabotage. Ward appealed on arguments that the trial court denied his constitutional right to present a defense by striking all testimony and evidence of necessity.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reasoned that the Sixth Amendment to the United States Constitution and article 1, sections 21 and 22 of the Washington Constitution guarantee a defendant the right to trial by jury and to defend against criminal allegations. If Ward submitted a sufficient quantum of evidence to show that he would likely be able to meet each element of the necessity defense, then the trial court’s exclusion of evidence in support of his sole defense violated Ward’s constitutional rights.

NECESSITY DEFENSE

The Court explained that the Necessity is available when the pressure of circumstances cause the accused to take unlawful action to avoid a harm which social policy deems greater than the harm resulting from a violation of the law. To successfully raise the necessity defense the defendant must prove, by a preponderance of the evidence, that: (1) they reasonably believed the commission of the crime was necessary to avoid or minimize a harm, (2) the harm sought to be avoided was greater than the harm resulting from a violation of the law, (3) the threatened harm was not brought about by the defendant, and (4) no reasonable legal alternative existed.

THE NECESSITY DEFENSE APPLIES

The Court held that that here, Ward’s necessity defense applies. In short, Ward’s past successes in effectuating change through civil disobedience in conjunction with the proposed expert witnesses and testimony about Ward’s beliefs were sufficient evidence to persuade a fair minded, rational juror that Ward’s beliefs were reasonable.

First, Ward offered evidence that he has been working with environmental issues for more than 40 years but that the majority of his efforts failed to achieve effective results. Ward asserted that because of these failures he came to understand that the issue of climate change would require other than incremental change and that direct action was necessary to accomplish these goals.

Second, Ward offered sufficient evidence to show that the harms of global climate change were greater than the harm of breaking into Kinder Morgan’s property. Ward asserted that the extent of the harm resulting from his actions were the loss of a few locks and the temporary inconvenience to Kinder Morgan’s employees. Compared to this, Ward introduced “voluminous scientific evidence of the harms of climate change.”

“When civil disobedience and the necessity defense intersect, it is the intent of the protester, not the effectiveness of the protest, that is of the utmost relevance.”

Furthermore, the Court of Appeals reasoned that Ward’s actions were not intended to be merely symbolic in nature because the harms that Ward asserted he was trying to alleviate were more than just climate change, generally, but also included both the specific dangers of Canadian tar sands oil and the impacts of sea level rise on Washington.

“As such, the evidence he planned to introduce was not solely aimed at inducing jury nullification and the trial court erred in preventing Ward from introducing evidence in support of his necessity defense,” said the Court of Appeals.

With that, the Court of Appeals reversed and remanded Ward’s conviction.

My opinion? I’m proud and impressed that our Court of Appeals allowed such a broad and permissive view of the Necessity defense. Apparently, the harm that climate change brings may necessitate  drastic measures.

Please contact my office if you, a friend or family member face criminal charges where the Necessity Defense could be argued and proven. Cases like State v. Ward show that a strong, well-supported defense of Necessity should be liberally given to juries when the facts support the defense. Kudos to Mr. Ward’s defense counsel for taking the case to jury, appealing the judge’s rulings and getting a successful outcome on appeal. Excellent work.

Was The House a Dwelling?

Image result for breaking and entering abandoned house

In State v. Hall, the WA Court of Appeals upheld a defendant’s criminal conviction for Residential Burglary despite his arguments that the house was not a dwelling.

BACKGROUND FACTS

In October 2014, Mr. Fredson moved his elderly mother Myrtle from her home to live near him because she had been having health problems. Myrtle had lived in the house since 1986, but by 2014 had difficulty managing her affairs.

Myrtle left furniture throughout the house, beds in each bedroom, appliances, clothes, and personal belongings in the home she moved away from. However, nobody lived in the house. After Myrtle went to live with her son Mr. Fredson, she visited the prior house once or twice a week.

Over time, unknown people broke windows and broke down doors in order to get inside
the house. Lloyd eventually boarded up the windows and secured the broken front door to keep people out. He also posted no trespassing and warning signs throughout the property.

On February 2, 2016, Mr. Fredson and Myrtle went to her home to check on it. Mr. Fredson suspected that someone was inside the house and called the sheriff. Officers responded and arrested the Defendant Mr. Hall as he came out of the house. Hall was carrying a backpack that contained items that Mr. Fredson and Myrtle identified as possessions that she had left in the house.

The State charged Mr. Hall with Residential Burglary, Third Degree Theft, and Making or Having Burglary Tools. A jury found him guilty of all three counts.

Mr. Hall appealed his residential burglary conviction. He argues that the evidence was insufficient to prove that the unoccupied house that he burglarized was a “dwelling,” as required to convict for Residential Burglary.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that a person commits Residential Burglary “if, with intent to commit a crime against a person or property therein, the person enters or remains unlawfully in a dwelling.” A “dwelling” is legally defined as “any building or structure which is used or ordinarily used by a person for lodging.” Whether a building is a dwelling turns on all relevant factors and is generally a matter for the jury to decide.

Here, however, the Court ruled that the fact that nobody had leaved in a house for 15 months prior to the burglary, that the windows had been boarded up and the broken front door had been secured, and there was no evidence of a plan for someone to resume living in the residence at the time of the burglary, did not prevent the house from being a “dwelling.”

Other factors supported a finding that the house constituted a dwelling included that the house had been used for lodging for almost 30 years, the house had never been used for anything other than lodging, the house was fully furnished with furniture in every room and appliances, and the owner of the house left clothing and personal belongings in the house. Finally, the owner, who was forced to leave because of age-related health problems, continued to regard the house as her abode.

Consequently, the Court of Appeals upheld Mr. Hall’s conviction.

My opinion? These type of cases are tough to defend. People have difficulty justifying the intrusion of any home, regardless of whether anyone lived in the home or not. Years ago, I conducted a jury trial on a Burglary case involving similar facts. My Client was a metal scrapper who wandered upon a long-abandoned house. The house was extremely decrepit, its front door was removed and no furniture was in the house. Although the jury ultimately acquitted Client of Burglary, they nevertheless found him guilty of the lesser crime of Criminal Trespass First Degree, a gross misdemeanor. This was a victory under the circumstances. Did I mention these types of cases are tough to defend?

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.

Supreme Court Makes it Harder to Deport Legal Immigrants Who Commit Crimes.

In this Feb. 7, 2017, photo released by U.S. Immigration and Customs Enforcement, foreign nationals are arrested during a targeted enforcement operation conducted by U.S. Immigration and Customs Enforcement (ICE) aimed at immigration fugitives, re-entrants and at-large criminal aliens in Los Angeles. (Charles Reed/U.S. Immigration and Customs Enforcement via AP, File)

In Sessions v. Dimaya, the United States Supreme Court held that 18 U. S. C. §16(b), which defines “violent felony” for purposes of the Immigration and Nationality Act’s removal provisions for non-citizens, was unconstitutionally vague.

BACKGROUND FACTS

Respondent James Dimaya is a lawful permanent resident of the United States with two convictions for first-degree burglary under California law. After his second offense, the Government sought to deport him as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals held that California’s first-degree burglary is a “crime of violence” under §16(b). While Dimaya’s appeal was pending in the Ninth Circuit, the U.S. Supreme Court held that a similar residual clause in the Armed Career Criminal Act (ACCA)—defining “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” 18 U. S. C. §924(e)(2)(B)—was unconstitutionally “void for vagueness” under the Fifth Amendment’s Due Process Clause. Relying on Johnson v. United States, the Ninth Circuit held that §16(b), as incorporated into the INA, was also unconstitutionally vague.

COURT’S ANALYSIS & CONCLUSIONS

Justice Kagan delivered the majority opinion of the Court and concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court’s opinion began by explaining that The Immigration and Nationality Act (INA) virtually guarantees that any alien convicted of an “aggravated felony” after entering the United States will be deported. See 8 U. S. C. §§1227(a)(2)(A)(iii), 1229b(a)(3), (b)(1)(C). An aggravated felony includes “a crime of violence for which the term of imprisonment is at least one year.

Justice Kagan explained that Section 16’s definition of a crime of violence is divided into two clauses—often referred to as the elements clause, §16(a), and the residual clause, §16(b). The residual clause, the provision at issue here, defines a “crime of violence” as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

To decide whether a person’s conviction falls within the scope of that clause, courts apply the categorical approach. This approach has courts ask not whether the particular facts underlying a conviction created a substantial risk; but whether “the ordinary case” of an offense poses the requisite risk.

Justice Kagan reasoned that ACCA’s residual clause created grave uncertainty about how to estimate the risk posed by a crime because it tied the judicial assessment of risk to a speculative hypothesis about the crime’s ordinary case, but provided no guidance on how to figure out what that ordinary case was. Compounding that uncertainty, ACCA’s residual clause layered an imprecise “serious potential risk” standard on top of the requisite “ordinary case” inquiry. “The combination of indeterminacy about how to measure the risk posed by a crime and indeterminacy about how much risk it takes for the crime to qualify as a violent felony resulted in more unpredictability and arbitrariness than the Due Process Clause tolerates,” said Justice Kagan.

Justice Kagan further reasoned that Section 16(b) suffers from those same two flaws. He explained that similar to the ACCA’s residual clause, §16(b) calls for a court to identify a crime’s ordinary case in order to measure the crime’s risk but offers no reliable way to discern what the ordinary version of any offense looks like. Additionally, its “substantial risk” threshold is no more determinate than ACCA’s “serious potential risk” standard. “Thus, the same two features that conspired to make ACCA’s residual clause unconstitutionally vague also exist in §16(b), with the same result,” said Justice Kagan.

Next, Justice Kagan raised and dismissed numerous arguments from the Government that §16(b) is easier to apply and thus cure the constitutional infirmities. “None, however, relates to the pair of features that Johnson found to produce impermissible vagueness or otherwise makes the statutory inquiry more determinate,” said Justice Kagan.

With that, the majority Court concluded that §16(b)’s “crime of violence” clause was unconstitutionally vague.

The Court was deeply divided. Justice Kagan’s opinion was joined by Justice Ginsburg, Justice Breyer, and Justice Sotomayor. Justice Gorsuch filed an opinion concurring in
part and concurring in the judgment. Justice Roberts filed a dissenting
opinion, in which Justices Kennedy, Thomas, and Alito joined.

Interestingly, it was Justice Gorsuch — a Trump nominee who sided with the four liberal-leaning justices in the ruling — who was the swing vote in this case. Despite his surprise vote, he explicitly left the door open to Congress to act, saying it should be up to lawmakers and not the courts to be explicit about the crimes that deserve automatic deportation for even legal immigrants.

My opinion? This decision is very good for legal immigrants facing crimes which are questionably deportable as crimes of moral turpitude and/or crimes of violence under today’s immigration laws. It’s incredibly difficult to navigate the criminal justice system, and even more so for defendants who are not citizens. Therefore, it’s imperative for legal immigrants charged with crimes to hire competent defense counsel when charged with crimes which may essentially result in deportation.

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.

Burglary of Inmate’s Cell?

prison fight | Big Stick Combat Blog

In State v. Dunleavy, the WA Court of Appeals held that a jail cell is a separate building for purposes of supporting a burglary charge/conviction, and the that the victim’s jail cell need not be secured or occupied at the time of the crime in order to support the charge.

BACKGROUND FACTS

Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there are eight cells capable of housing two inmates per cell. The cells open into a day room. In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is permitted to close his cell door, but if he does, the door will remain locked until opened the next morning.

Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla. LaMunyon responded that he did not have enough to share, but would buy more later and share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to “smash out.” Soon after, inmate John Owen attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon’s jail cell and took some of LaMunyon’s food. LaMunyon was seriously injured by Owen. Jail security investigated the fight and the theft, and concluded that the two were related. Security believed that Dunleavy staged the fight between Owen and LaMunyon to give him an opportunity to take LaMunyon’s food.

Because of the seriousness of LaMunyon’s injuries, and because security concluded that the fight and the theft were related, the jail referred charges to the local prosecuting authority. The State charged Dunleavy with second degree burglary, third degree theft, and second degree assault. After the State presented its case, Dunleavy moved to dismiss the second degree burglary charge on the basis that an inmate’s cell is a separate building. The trial court considered the parties’ arguments, denied Dunleavy’s motion to dismiss, and the case continued forward.

Dunleavy called one witness who testified that Dunleavy did not conspire with Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury. The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note to the trial court through the bailiff. The note asked, “Are the Walla Walla county jail policies legally binding? Are they considered law? What if we are not unanimous on a certain count?” The trial court, counsel, and Dunleavy discussed how the trial court should respond. The trial court’s response read, “You are to review the evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a verdict.” No party objected to this response.

Less than one hour later, the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and third degree theft but not guilty of second degree assault.

ISSUES

Dunleavy appealed on the issues of whether (1) jail cells are separate buildings for purposes of proving burglary, and (2) whether there is an  implied license for unlawful entry.

COURT’S ANALYSIS & CONCLUSIONS

1. Jail cells are separate buildings for purposes of proving burglary.

The Court of Appeals reasoned that under statute, a person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling. Furthermore, Washington law defines “building” in relevant part as any structure used for lodging of persons; each unit of a building consisting of two or more units separately secured or occupied is a separate building.

With these legal definitions in mind, the court noted that that a jail is a building used for lodging of persons, specifically inmates. Each cell is secured at night and an inmate can secure his cell from others. Furthermore, each cell is separately occupied by two inmates. “We discern no ambiguity,” said the Court of Appeals. “A jail cell is a separate building for purposes of proving burglary.”

2. No implied license for unlawful entry.

The Court of Appeals raised and dismissed Dunleavy’s arguments that he did not commit burglary when he entered LaMunyon’s cell because his entry was lawful from an implied license to enter the cell.

Contrary to Dunleavy’s argument, the Court explained that under Washington law, a person ‘enters or remains unlawfully’ in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.”

The Court of Appeals explained that the victim, LaMunyon, did not give Dunleavy permission to enter his cell. Furthermore, the Jail Sergeant testified that inmates are told when they are first booked into jail that they may not enter another inmate’s jail cell.

“Inmates are subject to punishment for breaking these rules, including criminal charges,” said the Court of Appeals. “A rational jury could find beyond a reasonable doubt that Dunleavy entered LaMunyon’s cell unlawfully.”

Consequently, the Court of Appeals affirmed Dunleavy’s conviction, yet remanded for resentencing on the separate issue that his offender score was incorrectly calculated.

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.