Category Archives: ER 404(B)

When Rap Lyrics Are Used Against You In Court.

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Why Are Rap Lyrics Being Used As Evidence in Court?

Journalist Sam Levins reports that California could soon limit the admissibility of rap lyric evidence at trial.

Last week, California lawmakers passed new regulations meant to restrict such use of rap lyrics as evidence in criminal court, the first-of-its-kind legislation expected to become law in the US. Experts say that although the impact of the new policy will be narrow, it is a step forward in putting guardrails on a prosecutorial practice that all too often has worked to criminalize the artistic expression of young Black and Latino men.

THE HISTORY BEHIND ADMITTING RAP LYRICS AS EVIDENCE AT TRIAL.

According to the article, more than 500 reported cases of prosecutors using rap music as evidence against defendants. The practice started to surge in the 2000s, when authorities began to rely on social media in cases against amateur rappers.

The lyrics are typically cited to suggest “gang affiliation”, proof of crimes and intent, or demonstrate a rapper’s “violent” character or threats. The strategy was used against famous artists like Snoop Dogg in the 1990s, Drakeo the Ruler in 2018 and Tekashi 6ix9ine in 2019.

Professor Jack Lerner, a University of California, Irvine Law School professor, is an expert on the subject. He says the tactic is used across the nation. Apparently, the American Prosecutors Research Institute released a 2004 manual encouraging the use of lyrics in search warrants and trials.

RAP MUSIC ON TRIAL.

Although there are rare cases where words or music videos may be linked to specific criminal offenses, experts say research shows their use in court has often worked to prejudice jurors against young men of color.

Multiple studies have found that associating defendants with rap music creates a strong negative bias in jurors. People are significantly more likely to perceive lyrics as violent, offensive, dangerous and literal if they are from rap, compared to other genres.

Researchers have also found widespread examples of prosecutors taking lyrics out of context, presenting them in inaccurate and misleading ways, treating fictional lines as facts or confessions and using music to expand charges and secure convictions and lengthy sentences.

“Prosecutors talk to each other and see this is a very effective tactic, and that it’s unlikely to be reversed on appeal. So why wouldn’t you do this if your goal is to lock people up, whether they’re guilty or not?” ~Dr. Erik Nielson, University of Richmond Professor

CALIFORNIA’S PROPOSED LAW BANNING THE ADMISSION OF RAP LYRIC EVIDENCE AT TRIAL.

The new California law places limits on when prosecutors can cite defendants’ “creative expression” in court. It applies to all genres of music, dance, film and other art forms, though the law acknowledges that using rap lyrics in particular creates a substantial risk of prejudice. Reggie Jones-Sawyer is the California state representative behind the bill.

The law requires judges to hold a hearing without the jury present to consider the admissibility of the evidence and whether it would “inject racial bias into the proceedings”.

A pending bill in New York introduced earlier this year would prohibit rap lyrics unless there was “convincing proof that there is a literal, factual nexus between the creative expression and the facts of the case”.

Federal lawmakers have introduced legislation similar to California’s bill, and the Recording Academy and major labels have backed the reforms.

WASHINGTON LAW ON CHARACTER EVIDENCE.

Under Evidence Rule 404, evidence of any other crime, wrong, or act is generally not admissible as character evidence. However, the evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.  Judges typically apply a balancing test  to determine whether character evidence is relevant, probative or prejudicial.

My opinion? Let’s hope California’s legislation passes. This is a viable way to stop overzealous prosecutors from using creative expression, which should never be prohibited.

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

“Lustful Disposition” Legal Term of Art Abandoned by WA Supreme Court

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In  State v. Crossguns, the WA Supreme Court disapproved of the prosecution’s use of the term “lustful disposition.”

BACKGROUND FACTS

The case involved allegations that the defendant, Mr. Crossguns Sr., sexually abused his daughter R.G.M.  At trial, prosecutors presented evidence that Mr. Crossguns Sr., had previously abused the victim from July 2015 to August 2016.

At trial, the State also sought to admit testimony from family members regarding these incidents. Crossguns opposed admitting the evidence, arguing that it was improper propensity evidence. The trial court concluded the probative value outweighed any risk of unfair prejudice and ruled the evidence was admissible under ER 404(b).

More specifically, the court was persuaded that the Prosecutor demonstrated Crossguns’s “intent, plan, motive, opportunity, absence of mistake or accident, lustful disposition toward R.G.M. Ultimately, the judge admitted the testimony under arguments that Crossguns’ had a “lustful disposition toward” the child. Crossguns was convicted of sex offenses to include second-degree rape of a child and second-degree child molestation.

appealed on argument that the prosecutor’s (1) use of the term “lustful disposition” was improper, and (2) statements in closing, asking the jury to decide if the witnesses were telling the truth, constitute misconduct.

COURT’S ANALYSIS & CONCLUSIONS

Justice Montoya-Lewis wrote the majority opinion and made short work of the “Lustful Disposition” issue:

“We conclude that the term ‘lustful disposition’ is archaic and reinforces outdated rape
myths and misconceptions of sexual violence . . . Therefore, we now reject the ‘lustful disposition’ label and hold that ‘lustful disposition’ is not a distinct or proper purpose for admitting evidence. To the extent our precedent indicates otherwise, it is disavowed.” ~WA Supreme Court Justice Raquel Montoya-Lewis.

In nixing its use in Washington, the Supreme Court wrote that the term “reinforces the myth of the pathological, crazed rapist who is a stranger to the victim.”

“The term ‘lustful disposition’ is an outmoded, inaccurate term that reinforces myths about sexual assault . . . We abandon this term because it is incorrect and harmful.”

However, Justice Montoya also reasoned that rejection of the label “lustful disposition” does not modify our established doctrine of allowing “evidence of other crimes, wrongs, or acts”  pursuant to ER 404(b). Therefore, the trial court’s reference to lustful disposition in its decision admitting the evidence was harmless.

“Further, we conclude that the prosecutor’s statements constitute misconduct, but the prejudice could have been corrected by an instruction,” reasoned the Court. Therefore, the WA Supreme Court affirmed the Court of Appeals in part and reversed in part, and remand to the Court of Appeals for further proceedings consistent with this opinion.

My opinion? Good opinion. It showed a forward-thinking and significant departure from inflammable terms of art which are historically prejudicial. Generally, evidence of a person’s character is not allowed to be used to prove that in the alleged crime the person acted in accordance with their character. There are many exceptions, including if the evidence speaks to a defendant’s motive, opportunity, intent or plan. And, until Thursday, if the evidence spoke to a defendant’s “lustful disposition,” it was fair game.

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.

Inadmissible & Irrelevant Evidence

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In State v. Burnam, the WA Court of Appeals held that the trial court correctly excluded evidence that the woman the defendant killed had four years earlier dated a man accused of murder and that she had hid the murder weapon.

BACKGROUND FACTS

Mr. Burnam was charged with first degree murder or, in the alternative, second degree murder and interfering with the reporting of domestic violence. As trial approached, Mr. Burnam wanted to testify in support of his self-defense claim. He also wanted to testify that the victim Ms. Sweet had been involved in a prior homicide.

Apparently, four years earlier, Ms. Sweet dated a man accused of murder and she had hid the murder weapon, which was a firearm. Sometime after the homicide, Ms. Sweet briefly gave the firearm away and then attempted to get it back. When law enforcement questioned her, she was evasive and misleading. She was charged and convicted of first degree rendering criminal assistance by means of concealing, altering, or destroying the gun.

Mr. Burnam claimed that this was character evidence and asked the court to analyze its admissibility under ER 404(b). Under this evidence rule, evidence of prior acts can be admissible for certain other reasons, including motive, opportunity, and intent

Mr. Burnam made a lengthy offer of proof in support of his motion. He argued that the evidence would help establish the reasonableness of his fear of serious harm or death during his struggle with Ms. Sweet. He repeatedly asserted the jury should know that Ms. Sweet was involved with a homicide or capable of being involved with a person who had committed a homicide.

Despite defense counsel’s offer of proof, the court nevertheless excluded all evidence of the homicide case that Ms. Sweet was involved in.

At trial, Mr. Burnam testified he responded in self-defense to Ms. Sweet. Despite his testimony, the jury found Mr. Burnam guilty of first degree murder and interfering with the reporting of domestic violence. Mr. Burnam appealed on arguments that the court should have admitted evidence that Ms. Sweet was involved in a murder from four years ago.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that both the United States Constitution and the Washington Constitution guarantee the right to present testimony in one’s defense. Furthermore, a defendant’s right to an opportunity to be heard in his defense, including the rights to examine witnesses against him and to offer testimony, is basic in our system of jurisprudence. However, defendants can present only relevant evidence and have no constitutional right to present irrelevant evidence. If relevant, the burden is on the State to show the evidence is so prejudicial as to disrupt the fairness of the fact-finding process at trial.

Admissibility of Self-Defense Evidence.

The Court further reasoned that in considering a claim of self-defense, the jury must take into account all of the facts and circumstances known to the defendant.

“Because the vital question is the reasonableness of the defendant’s apprehension of danger, the jury must stand as nearly as practicable in the shoes of the defendant, and from this point of view determine the character of the act,” said the Court. “Thus, such evidence is admissible to show the defendant’s reason for fear and the basis for acting in self-defense.”

Moreover, evidence of a victim’s violent actions may be admissible to show the defendant’s state of mind at the time of the crime and to indicate whether he had reason to fear bodily harm. Thus, a defendant may, in addition to the character evidence, show specific acts of the victim which are not too remote and of which the defendant had knowledge at the time of the crime with which he is charged. Evidence of specific acts may be admissible for the limited purpose of showing the defendant had a reasonable apprehension of danger.

Finally, the court reasoned that an offer of proof should (1) inform the trial court of the legal theory under which the offered evidence is admissible, (2) inform the trial judge of the specific nature of the offered evidence so the court can judge its admissibility, and (3) create an adequate record for appellate review.

The Court of Appelas concluded that Mr. Burnam’s offer of proof failed to inform the trial judge of the specific nature of the offered evidence.

“Mr. Burnam’s offer of proof was lengthy but repeatedly vague on the specific nature of the offered evidence.”

The Court further concluded that Ms. Sweet merely pleaded guilty to rendering criminal assistance by disposing of a firearm used previously in a homicide. Nevertheless, rendering criminal assistance is a nonviolent felony.

“The mere fact that Ms. Sweet dated a man accused of murder and hid the murder weapon does not strongly imply that Ms. Sweet was violent. The prejudicial effect of excluding this questionable evidence is minimal. We conclude the trial court did not violate Mr. Burnam’s constitutional right to present a defense when it excluded this evidence.”

Consequently, the Court of Appeals upheld the trial court’s decision to exclude evidence that Ms. Sweet was indirectly involved in a homicide from four years earlier.

Please contact my office if you, a friend or family member are involved in cases involving assault or self-defense. Generally speaking, evidence that the victim had prior bad acts and/or had violent tendencies is admissible. However, court must undergo a balancing test under the evidence rules to determine if the evidence being offered is relevant, probative and/or unfairly prejudicial. This case was fairly straightforward in determining that the dead victim’s prior conviction for a non-violent crime was irrelevant.

Facebook Photos Admissible

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The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farrad gives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the  Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

In September 2014, a federal grand jury charged Farrad with having, on or about October 11, 2013, knowingly possessed a firearm, namely, a Springfield, Model XD, .45 caliber, semiautomatic pistol.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

The parties did, however, litigate the admission of the photos on evidentiary grounds.
The Government argued that the Facebook photos qualified as business records under Federal Rule of Evidence 803(6) and that they were, as such, self-authenticating under Federal Rule of Evidence 902(11).

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence 401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person  and so long as the evidence is subject to challenge by  the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

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.

ER 404(B) and “Lustful Disposition”

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In State v. Gonzales, the WA Court of Appeals held that a trial court did not commit error in admitting evidence that, after the charged conduct, the victim observed the defendant masturbating while holding the victim’s bra.

BACKGROUND FACTS

When J.G. was six years old, she and her younger brother moved in with their grandfather, defendant Eddy Gonzales and his wife. This sexual abuse ended when J.G. was ten or eleven years old. But after the molestation stopped, J.G. once encountered Gonzales masturbating in his room while holding her bra.

When J.G. was eleven years old, she moved out of the house. She informed family members of the molestation. They, in turn, contacted police; who later arrested Mr. Gonzales.

Gonzales was charged with first degree rape of a child and first degree child molestation. The State later added a second count of first degree child rape and charged him with tampering with a witness.

At trial, the Court admitted testimony that he masturbated while holding J.G.’s bra.

The jury acquitted Gonzales of one count of first degree child rape, but found him guilty of the remaining charges. Among other issues not discussed here, Gonzales appealed on the issue of whether the trial court wrongfully admitted that evidence. He argued this uncharged misconduct goes to propensity and should be excluded under ER 404(b). He argues the trial court wrongfully admitted this testimony to show his “lustful disposition” toward J.G., particularly because it occurred after the charged conduct.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals described the rules of evidence which allow or disallow the evidence from getting to the jury. In short, (ER) 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for “other purposes.”

Consequently, the Court reasoned that Washington courts have consistently held one such other purpose is evidence of collateral sexual misconduct when it shows the defendant’s lustful disposition toward the victim. This is because a lustful disposition makes it more likely that the defendant committed the crime charged. Evidence of uncharged sexual misconduct occurring before or after the charged acts is admissible. In an ER 404(b) analysis, the trial court must balance and weigh probative value against the potential for unfair prejudice.

Second, the Court of Appeals applied the law to its reasoning. It said that here, the trial court admitted J.G.’s testimony that she saw Gonzales masturbating while holding her bra. The trial court reasoned that Gonzales’s behavior was sexual conduct that showed lustful disposition toward J.G. The trial court also found that the probative value of the evidence was not outweighed by unfair prejudice.

“The trial court did not abuse its discretion,” said the Court of Appeals. “Gonzales’s action shows a sexual desire for J.G. Thus, it goes toward an ‘other purpose’ as provided under ER 404(b).”

Third, the Court of Appeals rejected Gonzales’s arguments that any uncharged sexual misconduct is unfairly prejudicial in a sex abuse prosecution. It reasoned that the admitted evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and J.G. was only indirectly victimized by it.

Finally, the Court of Appeals rejected Gonzales’s arguments that the admitted testimony had diminished probative value because the incident occurred after the alleged abuse. The Court of Appeals reasoned that an act occurring after the charged abuse is relevant to lustful disposition. It was not an abuse of discretion to conclude that the probative value of this testimony was not outweighed by unfair prejudice.

With that, the Court of appeals affirm the admission of the “lustful disposition” testimony under ER 404(b) and upheld Mr. Gonzalez’s conviction.

My opinion?

It’s tricky to predict whether judges will admit or deny evidence when the evidence is offered for “other purposes” under ER 404(b). Judges have lots of discretion an how and where the rule applies. Still, judges must follow the doctrine of stare decisis and make rulings which are consistent existing case law when rendering decisions.

Fortunately, I’m quite familiar with the case law on this subject. Please contact my office if you, a friend or family member faces charges and the State wants to offer evidence of the offender’s behavior which falls outside the scope of the immediate facts that are alleged. Perhaps a well-argued pretrial motion to suppress evidence could change the complexion of the case and result in reducing or dismissing the charges.

Glaring During Trial

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In State v. Sage, the WA Court of Appeals held that a trial court did not abuse its discretion by denying the defendant’s motion for a mistrial based upon the victim’s behavior – glaring at the defendant – when called to the stand.

BACKGROUND FACTS

Jonathan Sage faced four counts of second degree rape of a child. He was alleged to have engaged in sexual acts with minors J.M. and E.M., and came into contact with the two brothers because he owned a company at which J.M. and E.M.’s mother worked.

The case proceeded to trial. During proceedings, the victim E.M. glared at Sage as he entered the courtroom. Sage’s defense attorney objected and requested an immediate mistrial. He described the interaction as follows:

“E.M. walked past defense counsel and hissed at the Defendant, bent down, and made an aggressive stare. As best as I could tell, the jurors looked horrified. Their reaction is clear that the stance or that moment is going to live in their minds as opposed to what he
testifies to. My client has a right to a fair trial, to be presumed innocent, and I don’t know that he can get a fair trial with this jury after that behavior.”

Although the trial judge sustained defense counsel’s objection, the court denied the motion for mistrial and instructed the jury to disregard E.M.’s behavior.

The jury convicted Sage on all four counts and, by special verdict, found the alleged aggravating circumstances had been established. The court concluded the aggravating circumstances were substantial and compelling reasons to impose an exceptional sentence.

Sage appealed his conviction and his exceptional sentence under the argument that his motion for a mistrial should have been granted because E.M.’s courtroom behavior prejudiced the jury.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals reasoned that a trial court should only grant a mistrial when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried. To determine the effect of the irregularity leading to the request for a mistrial, the court examines: (i) its seriousness; (ii) whether it involved cumulative evidence; and (iii) whether the trial court properly instructed the jury to disregard it.

“Here, E.M. entered the courtroom and glared at Sage,” said the Court of Appeals. “The trial court denied Sage’s motion for mistrial and entered a detailed ruling on the record. Unlike a verbal outburst or threatening gesture, E.M. glared at Sage. The court gave a curative instruction. E.M. did not repeat the behavior after the trial court instructed the jury to disregard the behavior,” said the Court of Appeals. “We conclude the trial court did not abuse its discretion.” Also, the Court of Appeals upheld Sage’s exceptional sentence based on aggravating factors.

With that, the Court upheld Sage’s conviction and exceptional 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.

Character Evidence

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In State v. Wilson the WA Court of Appeals held that the trial court mistakenly admitted into evidence a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
BACKGROUND FACTS
Claudine Wilson has cared for her granddaughter, B.E., since she was born on January 29, 2006. In 2010, when B.E. was four years old, Claudine married the defendant Leslie Wilson. Wilson moved into Claudine’s home in Auburn, Washington which Claudine shared with several other family members. Claudine, Wilson, and B.E. shared a bedroom. Claudine and Wilson slept in a king size bed. B.E. had her own bed in the same room, but sometimes slept with Claudine and Wilson.
Wilson and B.E. appeared to get along well. However, the marriage between Wilson and Claudine eventually deteriorated, in part due to Wilson’s alcohol use. Wilson left the household in July 2012. About five months later, in December 2012, just after Claudine spoke to Wilson on the telephone, B.E. told Claudine that Wilson had touched her.
Wilson was charged with two counts of Rape of a Child in the First Degree and one count of Attempted Rape of a Child in the First Degree.
Before trial, the State informed the trial court of its intent to present evidence of a sexual remark Wilson allegedly made to B.E.’s older cousin, S.H. Specifically, S.H. claimed that when she was 11 or 12 years old and wearing a bathing suit, Wilson remarked that she should not “wear that stuff around [him] because it gets—[him] so excited.” The State argued that this evidence showed that Wilson had a common scheme or plan to sexually assault young girls. The defense argued that the evidence showed only propensity and was inadmissible. The court ruled that S.H.’s testimony demonstrated a common scheme or plan and was admissible under ER 404(b).
COURT’S ANALYSIS & CONCLUSIONS
The Court of Appeals agreed with Mr. Wilson that the trial court erred in admitting a dissimilar and unfairly prejudicial prior act of sexual misconduct as a purported common scheme or plan under ER 404(b).
The Court reasoned that ER 404(b) prohibits the use of evidence of other crimes, wrongs, or acts to prove the character of a person in order to show action in conformity therewith. The same evidence may be admissible for other purposes, however, depending on its relevance and the balancing of the probative value and danger of unfair prejudice. State v. Gresham. One accepted “other purpose” under ER 404(b) is to show the existence of a common scheme or plan.
The Court further reasoned that prior misconduct and the charged crime must share a sufficient number of “markedly and substantially similar” features so that the similarities can naturally be explained as individual manifestations of a general plan. The prior misconduct must be sufficiently similar to the charged crime, or else the evidence of misconduct is not probative of whether the alleged act occurred. Similarity of results is insufficient and the evidence must show more than a general “plan” to molest children. Ultimately, in doubtful cases, the evidence should be excluded.
Against that backdrop, the Court decided that the incidents described by B.E. and S.H. did not share “markedly and substantially similar” features that can naturally be explained as individual manifestations of a general plan:
“B.E. reported recurring incidents of sexual abuse. S.H. reported an isolated, sexually-oriented remark. There was a significant difference in the victims’ ages when the incidents occurred. The evidence was similar only in the respect that it tended to show Wilson’s sexual attraction to minors. S.H.’s testimony did not demonstrate the existence of a common scheme or plan. In view of the limited evidence presented to the jury, we cannot say that the admission of the ER 404(b) evidence did not materially affect the trial within reasonable probabilities.”
With that, the Court of Appeals reverse Wilson’s conviction of Rape of a Child.

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.

Evidence of Self-Defense

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In State v. Lee, the WA Court of Appeals held that the trial court violated the defendant’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

BACKGROUND FACTS

On January 25, 2015, the defendant Chevalier  Lee’s girlfriend, Danielle Spicer, visited the home of Alice Gonzalez and her husband, Louis Gonzalez -Hernandez. Spicer went to the Gonzalez’s house and stayed there with Gonzalez and Gonzalez Hernandez’s’ five children while Gonzalez and Gonzalez-Hernandez ran errands. Gonzalez and Gonzalez-Hernandez returned home to find Lee at their house playing cards with their children and Spicer. Although they had not invited him, Lee had been to their home many times and was generally welcome there.

Later that evening, Lee and Spicer began arguing about whether they would spend the night with Gonzalez and Gonzalez-Hernandez or return to their respective individual residences. Lee loudly cursed at Spicer as the argument escalated. Gonzalez-Hernandez told Lee that he did not like “that kind of behavior” in his house and Lee would have to leave. Lee refused and said that he didn’t have to leave.

Gonzalez-Hernandez told Lee to leave approximately three-to-five times. According to Lee, he then cursed at Gonzalez-Hernandez who “came right at” him. Gonzalez-Hernandez had his hands up. Lee was scared and hit Gonzalez-Hernandez. The two men then wrestled. Lee left after seeing the scared looks Gonzalez, Spicer, and the children had.

According to Gonzalez-Hernandez, Lee called him a “f**king b***h” and hit him in the
face. Another witness saw Lee approach Gonzalez-Hernandez and get within inches of his face. Gonzalez-Hernandez again told Lee to leave and Lee “swung at him.” After they fought for a few minutes, Gonzalez called 911 and Lee and Spicer left.

Jury Trial

At trial, the defense sought to elicit testimony from Spicer that she and Lee had witnessed
Gonzalez-Hernandez being “physical with his wife” in a separate incident four days prior to the assault. Lee’s attorney argued that this evidence would show that Lee had actual knowledge that Mr. Gonzalez-Hernandez actually had the capacity to be aggressive and/or violent. According to Lee’s defense attorney, this evidence would show Lee’s state of mind regarding his need to defend himself.

The judge sustained the City’s objection, finding the evidence was “more prejudicial than probative” and that allowing such evidence would open the door to evidence about Lee’s prior misconduct. The defense suggested it would then elicit testimony that Lee “had prior information that Mr. Gonzalez-Hernandez had been known to be aggressive.” The trial court sustained the City’s objection to this evidence, finding it “more prejudicial than probative of anything.”

In fact, during Lee’s testimony, Lee stated that he “had reason to be scared of Gonzalez-Hernandez already,” to which the City objected and the court sustained. Neither the City nor the court stated any specific grounds for this objection or ruling.

A jury found Lee guilty of Assault Fourth Degree. He appealed to the Pierce County Superior Court which affirmed the conviction. The WA Court of Appeals granted Lee’s motion for discretionary review.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held that the trial court violated Lee’s Sixth Amendment right to present a defense by excluding evidence of self-defense.

The Court agreed with Lee that evidence he had witnessed regarding Gonzalez-Hernandez’s recent violent behavior was critical to his defense because it both increased the likelihood he had a subjective fear of Gonzalez-Hernandez and it made his fear more objectively reasonable, thus strengthening his self-defense argument.

The Court of Appeals reasoned that self-defense is a complete defense under RCW 9A.16.020. A defense of self-defense requires proof (1) that the defendant had a subjective fear of imminent danger of bodily harm, (2) that this belief was objectively reasonable, and (3) that the defendant exercised no more force than was reasonably necessary. The City has the burden of proving the absence of self-defense beyond a reasonable doubt.

The Court further reasoned that evidence of self-defense is evaluated from the standpoint of the reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees. This standard incorporates both objective and subjective elements. The subjective portion requires the jury to stand in the shoes of the defendant and consider all the facts and circumstances known to him or her; the objective portion requires the jury to use this information to determine what a reasonably prudent person similarly situated would have done.

Also, said the Court, a fact finder evaluates self-defense from the defendant’s point of view as conditions appeared to him at the time of the act. For the subjective portion of the self-defense test, jurors must place themselves in the shoes of the defendant and evaluate self-defense in light of all that the defendant knew at the time. All facts and circumstances known to the defendant should be placed before the jury. Thus, reasoned the court, under ER 404(B) and ER 405 (B), where a defendant claims self-defense, a victim’s prior acts of violence known to the defendant are admissible to establish a defendant’s reason for apprehension and his basis for acting in self-defense.

ER 404(B)

To determine whether a specific act should be admissible under rule 404(B), the trial court 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. The trial court is required to conduct an ER 404(b) analysis on the record.

“In this case, Lee sought to admit evidence of Gonzalez Hernandez’s prior acts of violence
to prove that Lee had knowledge of those acts, giving him reason to fear Gonzalez-Hernandez,” said the Court.

Furthermore, the Court reasoned that evidence that Lee had witnessed Gonzalez-Hernandez being “physical” with his wife four days before the incident was relevant to Lee’s state of mind. “The evidence would allow the jury to assess Lee’s reason to fear
bodily harm from the victim,” said the Court.

Finally, the Court weighed the probative value of Gonzalez-Hernandez’s history of violence against its prejudicial effect. “Because the evidence in this case was relevant and otherwise admissible, the trial court should only exclude it if the City showed that the evidence was so prejudicial as to disrupt the fairness of the fact-finding process at trial,” said the Court. “Here, the proffered evidence went to Lee’s complete defense. Its probative value is to allow Lee to present a defense.”

Consequently, the Court ruled that the City failed to demonstrate that evidence of Gonzalez-Hernandez’s prior violent conduct known to Lee would be so prejudicial as to outweigh Lee’s Sixth Amendment right to present his defense. “This type of evidence should be heard by a jury so it can assess the reasonableness of Lee’s actions,” said the Court.

With that, the Court of Appeals reversed Lee’s conviction.

My opinion? Good decision. Under the Sixth Amendment, citizens have a right to an adequate defense. Under Washington statute, self-defense is a complete defense. Therefore, suppressing evidence which proves self-defense violates the Sixth Amendment.

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.