Category Archives: felony

The Limits of Expert Witness Testimony

Expert Witness - Dr. Elisabeth "Eli" Sheff

In State v. Caril, the WA Court of Appeals held that a lower trial court did not violate the defendant’s Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

BACKGROUND FACTS

Mr. Caril was convicted of second degree murder. He asserts he was in a state of compromised mental health when he stabbed and killed a person.

During the night of June 22-23, 2017, Mr. Ross, Ms. Nguyen, and Mr. Pimenthal enjoyed a night out with a group of friends. In the early morning hours, they obtained take-out meals and sat on the curb outside the restaurant to eat. From across the street, an individual shouted, “Shut the fuck up,” and threw a two-liter soda bottle in their direction. It landed by their feet. Ross shouted back that throwing the bottle was a “good way to get your ass kicked.”

Ross observed the individual – later identified as the defendant Mr. Caril – walk across the street. He walked towards the group brandishing a knife. Ross told everyone to “run” and that the approaching individual had a knife. Nguyen and Ross withdrew. Unfortunately, Pimenthal was not able to do so in time. While running away, Ross saw Caril stab Pimenthal. Nguyen saw Caril “punch” Pimenthal three times in the chest. Mr. Hussen, who observed these events from his car nearby, exited his vehicle and shouted at Caril. Hussen asked if Carilwas “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if he “wanted some too.” Pimenthal died from his injuries.

Caril was charged with first degree murder. He was later charged with an additional count of second degree murder.

At trial, Caril, who suffers from paranoid schizophrenia, called an expert psychologist. The expert testified that Caril lacked the capacity to form criminal intent at the time of the incident. The trial court allowed this testimony. However, the trial judge prohibited Caril’s expert witness from testifying to hearsay statements from another psychologist’s report that the expert relied on. The court reasoned that the excluded statements concerned the collateral issues of Caril’s competency to stand trial and potential future need for civil commitment.

Caril was acquitted of first degree murder, but the jury found him guilty of the lesser included crime of second degree murder (intentional murder) with a deadly weapon. Caril was found guilty of second degree murder (felony murder) with a deadly weapon on count II.

On appeal, Caril argued the trial judge abused his discretion and violated his Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

COURT’S ANALYSIS & CONCLUSIONS

The Court Appeals said that under the Sixth Amendment, a defendant has a constitutional right to present a defense. This right is not, however, absolute. It may bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible.

Furthermore, an expert witness is permitted to base an opinion on facts or data that are not admissible in evidence. Ths can happen under ER 703 if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Consequently, the trial court has discretion to determine the extent to which the expert may convey this information.

Here, the Court of Appeals reasoned that the hearsay statements were relevant to explain the basis for the expert’s opinion. However, it further reasoned that admitting them could confuse or mislead the jury. This was because the hearsay statements concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low. They were inadmissible as substantive evidence and relevant only for the purpose of providing additional context for the expert’s opinion.

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

Rainbow Fentanyl

DEA Warns of Brightly-Colored Fentanyl Used to Target Young Americans

The Drug Enforcement Administration is advising the public of an alarming emerging trend of colorful fentanyl available across the United States.  In August 2022, DEA and other police agencies seized brightly-colored fentanyl and fentanyl pills in 18 states.  Dubbed “rainbow fentanyl” in the media, this trend appears to be a new method used by drug cartels to sell highly addictive and potentially deadly fentanyl made to look like candy to children and young people.

“Rainbow fentanyl—fentanyl pills and powder that come in a variety of bright colors, shapes, and sizes—is a deliberate effort by drug traffickers to drive addiction amongst kids and young adults . . . The men and women of the DEA are relentlessly working to stop the trafficking of rainbow fentanyl and defeat the Mexican drug cartels that are responsible for the vast majority of the fentanyl that is being trafficked in the United States.” ~DEA Administrator Anne Milgram

Brightly-colored fentanyl is being seized in multiple forms, including pills, powder, and blocks that resembles sidewalk chalk. Despite claims that certain colors may be more potent than others, there is no indication through DEA’s laboratory testing that this is the case.  Every color, shape, and size of fentanyl should be considered extremely dangerous.

Fentanyl is a synthetic opioid that is 50 times more potent than heroin and 100 times more potent than morphine.  Just two milligrams of fentanyl, which is equal to 10-15 grains of table salt, is considered a lethal dose.  Without laboratory testing, there is no way to know how much fentanyl is concentrated in a pill or powder.

Fentanyl remains the deadliest drug threat facing this country.  According to the CDC, 107,622 Americans died of drug overdoses in 2021, with 66 percent of those deaths related to synthetic opioids like fentanyl.  Drug poisonings are the leading killer of Americans between the ages of 18 and 45.  Fentanyl available in the United States is primarily supplied by two criminal drug networks, the Sinaloa Cartel and the Jalisco New Generation Cartel (CJNG).

In September 2021, DEA launched the One Pill Can Kill Public Awareness Campaign to educate Americans about the dangers of fake pills.  Additional resources for parents and the community can be found on DEA’s Fentanyl Awareness page.

The DEA advises that if you encounter fentanyl in any form, do not handle it and call 911 immediately.

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

Low-Level Robbery Won’t Get A Reduced Sentence

Why Grocery Stores are adding Supplemental Security during the Coronavirus Outbreak | CITIGUARD

In State v. Thomason, the WA Supreme Court held that the low-level, de minimis nature of some crimes can allow for an exceptional downward sentence. However, the minimal level of force used to prove Robbery makes it inappropriate to allow a downward sentence.

FACTUAL BACKGROUND

On September 5, 2018, Thomason entered Yoke’s Fresh Market grocery store in Spokane.  A plainclothes security guard, Mr. Swartz, followed Thomason around the store. Swartz watched Thomason pick up about $15 worth of meat and cheese. Thomason proceeded to another part of the store and tucked the food down his pants. Thomason then left the store without paying.

Swartz followed Thomason out and confronted him. Swartz grabbed Thomason’s arm, displayed his badge, and asked Thomason to go back inside the store. Thomason tried to pull free, and Swartz warned him that he was only making the situation worse. The two pulled at each other back and forth as Swartz tried to detain Thomason and Thomason tried to break free.

During this exchange, Thomason swung at Swartz two times. Thomason used a closed fist, aimed at Swartz’s face both times, and hit Swartz the second time with a glancing blow. Swartz yelled at his partner, a guard in training, to help. Thomason punched Swartz a third time. Swartz testified that the third punch “hurt” and caused a minor injury. His face was sore and slightly red for a day or two. Thomason escaped by pulling out of his sweatshirt and running. He was seen getting into a passenger car and was eventually apprehended.

The State charged Thomason with second degree robbery just before trial. A jury convicted him as charged.

THE SENTENCING

At sentencing, the parties agreed that Thomason’s offender score was 10. That made his standard sentencing range 63-84 months. Thomason requested a 12-month sentence. This was a exceptional downward departure from his sentencing range.

The trial court judge considered an exceptional sentence below the standard range. The judge said that the crime was no more than a “glorified shoplifting charge” that should have been treated as a misdemeanor. Nevetheless, the judge determined that the law barred him from imposing an exceptional downward sentence. The judge imposed 63 months, the bottom of the standard range, instead.

Thomason appealed on several grounds. However, the Court of Appeals affirmed his conviction. The WA Supreme Court granted appellate review solely on the exceptional sentence issue.

COURT’S ANALYSIS & CONCLUSIONS

The Court reasoned that Washington’s Sentencing Reform Act lists mitigating circumstances that can support an exceptional sentence below the standard range. It explained that in appropriate cases, the de minimis nature of a crime can support an exceptional sentence below the standard range. An appropriate case is one in which (1) the legislature did not consider the mitigating factor already when it listed the elements of the crime or set the standard sentence range and (2) the factor constitutes a substantial and compelling reason to depart below the range.”

The Court acknowledged Thomason’s argument that his crime was de minimis. The value of the items taken was low and no force was used to accomplish the taking. Although force was used to retain the property, it was “minor” force. However, the court disagreed with Thomasan’s argument that he was allowed an exceptional downward sentence.

The Court reasoned that the plain language of the robbery statute shows that the legislature did consider a defendant’s minimal use of force when it defined the crime of second degree robbery.

“As the emphasized language shows, the legislature clearly considered whether the crime of second degree robbery should punish a taking combined with a minimal showing of force. It criminalized a taking in which either ‘force’ ‘or’ no force at all—just ‘fear’—is used to accomplish the taking . . . The legislature even said that where, as here, such force or fear is used to obtain or retain possession of the property, or to prevent or overcome resistance to the taking, the degree of force is immaterial.”~WA Supreme Court

With that, the WA Supreme Court affirmed Mr. Thomason’s conviction.

My opinion? I agree with Chief Justice Steven Gonzalez’s concurring opinion. He wrote separately because he was increasingly troubled by our controlling, unchallenged precedents and the sentencing laws they interpret.

“Washington’s sentencing guidelines suggest, among other things, that unconstrained discretion in sentencing operates to favor whites and disfavor members of minority groups,” said Justice Gonzalez. As part of the concurrence, he references an article about prosecutorial discretion and sentencing guidelines. He ended his opinion with choice parting words:

“We must find a way to live justly with one another. We must not steal from each other or strike each other. But when it happens, the State must not respond with a disproportionate punishment. I am increasingly concerned that sentences like this for what amounts to glorified shoplifting are simply not just and speak to deep problems with our sentencing systems.” ~Chief Justice Steven C. Gonzalez, WA Supreme Court.

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

Proposed Federal Law Prohibits “Stealthing,” Non-Consensual Condom Removal

Is stealthing sexual assault? | WHP

Excellent article by journalist  Anne Branigin reports that “Stealthing,” the act of removing a condom during intercourse without the other partner’s consent, is gaining attention among lawmakers.

Fair warning: the following subject matter discusses sexual offenses. Sexual assault is both a common and a very serious crime. It is investigated by the police with an intensity second only to that of homicide and manslaughter.

Yes, there are defenses to these charges that are discussed later in this blog. However, sexual consent should always be clearly communicated. There should be no question or mystery. Silence is not consent. And it’s not just important the first time you’re with someone. Couples who’ve had sex before also must to consent before engaging the act every time.

“Stealthing” Defined.

“Stealthing,” is the practice of a man removing a condom during sexual intercourse without consent, when his sex partner has only consented to condom-protected sex. While victims of stealthing tend to be clear about its harms, what has been less clear is how to define it. Is it assault? And could — or rather, would — the law do anything about it?

Fedeal Legislation is Proposed to Outlaw “Stealthing.”

This month, federal legislation was introduced offering clarity and a legal remedy for survivors of stealthing. One bill introduced last month would explicitly name stealthing as a form of sexual violence and create a legal pathway for victims to sue perpetrators for damages and relief. A separate bill, called the Consent Is Key Act, would encourage states to pass their own laws authorizing civil damages for survivors by increasing funding for federal domestic violence programs in states that pass those laws.

The federal legislation mirrors a first-of-its-kind California law passed in October. That law expanded the definition of sexual battery in the state’s civil code to include removing a condom without verbal consent. The U.S. House bill defines stealthing as removing any “sexual protection barrier” without the consent of each person involved in the sexual act.

“Stealthing is a grave violation of autonomy, dignity, and trust that is considered emotional and sexual abuse,” reads the House bill, titled the Stealthing Act of 2022.

What Do Studies on Stealthing Suggest?

In the last several years, a number of researchers have attempted to quantify how many people experience nonconsensual condom removal.

In one Melbourne study, which surveyed more than 2,000 people visiting a local clinic over a three-month period in 2017, nearly one in three of the women surveyed said they had been “stealthed” at some point in their life. About 19 percent of men who had sex with other men said this had happened to them. Another 2019 study — which recruited women 21 to 30 with “increased sexual risk characteristics”— found that 12 percent of respondents said a partner engaged in stealthing (nearly half said they had experienced some form of coercive resistance to condoms).

One narrow 2019 study that recruited 626 men who were “inconsistent condom users” between the ages of 21 and 30 found that 10 percent said they had removed a condom without their partner’s consent; men with greater hostility toward women and more severe sexual aggression had “significantly higher odds of engaging in nonconsensual condom removal behavior,” the study’s author wrote.

Is Stealthing a form of Sexual Assault?

The growing narrative says “Yes.” Katie Russell, a spokesperson for the advocacy and support organization Rape Crisis, said the following:

“Ultimately what we’re talking about is rape . . . It’s not something that’s a bit cheeky or naughty to try to get away with — this is something serious that can have really damaging impacts for other person’s whole life and health.” ~Katie Russell, Spokesperson for Rape Crisis.

Defenses to Sex Crimes.

Sex crimes are very serious and being accused of committing one should be taken very seriously. While there aren’t very many, there are a few defenses to such an accusation: he or she is innocent; he or she engaged in consensual sexual activity, or he or she can’t be held guilty due to mental disease or defect.

  1. Actual Innocence.

Like all crimes, the most widely used defense is innocence. To prove innocence, an individual must generally be able to prove that it would be a physical impossibility to be guilty since they were at another location at the time or by providing a credible alibi. It’s the burden of the prosecution to prove that a defendant is guilty. The defendant will want to establish reasonable doubt. If he or she can do so then under the law the jury should acquit him or her.

In cases concerning an alleged victim’s intoxication, RCW 9A.44.030 offers a defense if the defendant reasonably believed that the victim was not mentally incapacitated and/or physically helpless. Again, this statutory defense exists if the alleged victim is drunk/intoxicated beyond the point of consent. The defendant must prove this defense by a preponderance of the evidence.

          2. Consensual Act.

Consent is also a substantive defense. If a defendant can prove that the act was consensual, a crime does not exist. Consent means that at the time of the act of sexual intercourse and/or contact, there are actual words or conduct indicating freely given agreement to have sexual intercourse/contact.

However, it’s important to understand whom – and who cannot – provide legal consent. Those without legal capacity cannot consent no matter what. This includes minors. If an individual engages in sexual activity with a minor, it is statutory and there can be no legal consent – even if there is verbal consent. The fact that majority of assailants are known to the victims and that a large numbers of cases are associated with drinking alcohol complicates the picture.

Hire an Attorney As Soon As Possible When Facing a Potential Sex Offense.

Merely being charged with a sexual offense is devastating. An allegation of sexual misconduct can cost someone their employment, their family, their loved ones and their home. Please contact my office if you, a friend or family member are charged with a sex offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

High Court: Race Must be Considered in Determining Legality of Police Stops and Seizures

Center for the Study of Race and Law | University of Virginia School of Law

In State v. Sum, the WA Supreme Court held that  a person’s race – and law enforcement’s long history of discrimination against people of color – should be taken into account when determining the legality of police seizures.

FACTUAL BACKGROUND

The case concerns Palla Sum, a person of color who identifies himself as Asian/Pacific Islander. Mr. Sum was sleeping in his car in Tacoma one morning in April 2019 when police came upon him. Deputy Rickerson An officer ran his plates. The car was not stolen. There is no indication that it was parked illegally. Nevertheless, the car attracted the deputy’s attention because “it was parked there.”

The officer knocked on the window, asked Sum questions and asked him for identification. Sum gave a false name and the officer went back to his cruiser to check records. Sum then drove off, crashed into a front lawn and was caught as he attempted to run away.

Sum was subsequently charged with Making a False Statement, Eluding and Unlawful Possession of a Firearm, after a gun was found in his car.

Sum filed a pretrial motion to suppress pursuant to CrR 3.6. He argued that he was unlawfully seized without reasonable suspicion when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft. The court denied Sum’s motion to suppress. It ruled that because Sum was not seized when Rickerson asked him to identify himself, because the did not retain Sum’s physical identification to conduct his records check. Sum was convicted of all three charges by a jury.

Although the WA Court of Appeals upheld his conviction, Sum again appealed to the WA Supreme Court. He argued  that there is no justification—aside from unacceptably ignoring the issue of race altogether—for courts considering the totality of the circumstances to disregard the effect of race as one of the circumstances affecting evaluation of police contact.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court discussed the standard of review for addressing similar cases. It reasoned that the search and seizure inquiry is an objective test. An allegedly seized person has the burden to show that a seizure occurred. It further clarified that a person is seized if, based on the totality of the circumstances, an objective observer could conclude that the person was not free to leave, to refuse a request, or to otherwise terminate the encounter due to law enforcement’s display of authority or use of physical force.

The Court also took its “objective analysis” test a step further:

“For purposes of this analysis, an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.” ~Justice Mary Yu, WA Supreme Court

Furthermore, wrote the Court, if the person shows there was a seizure, then the burden shifts to the State to prove that the seizure was lawfully justified by a warrant or an applicable exception to the warrant requirement.

Next, the Court applied its now race-conscious test to the facts of the case. It reasoned that based on the totality of the circumstances, Mr. Sum was seized when Deputy Rickerson requested Sum’s identification while implying that Sum was under investigation for car theft.

“As the State properly concedes, at that time, the deputy did not have a warrant, reasonable suspicion, or any other lawful authority to seize Sum,” wrote Justice Yu. “As a result, Sum was unlawfully seized, and the false name and birth date he gave to the deputy must be suppressed. We therefore reverse the Court of Appeals and remand to the trial court for further proceedings.”

My opinion? Good decision.

In an amicus brief, public defender and civil rights groups argued that law enforcement’s history of discriminating against people of color needs to be reflected in how the law is interpreted. The groups, including the King County Department of Public Defense and the ACLU of Washington, wrote the following:

“Centuries of violence and dehumanizing treatment of people of color have required BIPOC communities to develop survival strategies that demand over-compliance with law enforcement . . . For courts to continue to blind themselves to that reality when evaluating the freedom an individual would feel to unilaterally terminate a law enforcement contact is to further enshrine existing racial disparities into the legal system.”

Please review my Search & Seizure guide and  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.

Drug Overdose Deaths Hit Highest Level On Record

U.S. drug overdose deaths hit record 107,000 last year

According to provisional data from the US Centers for Disease Control and Prevention, drug overdoses in the United States were deadlier than ever in 2021.

Nearly 108,000 people died of drug overdoses in 2021, and about two-thirds of those deaths involved fentanyl or another synthetic opioid. Overdose deaths have been on the rise for years in the US, but surged amid the Covid-19 Pandemic. Annual deaths were nearly 50% higher in 2021 than in 2019, CDC data shows.

The spike in overdose deaths in the second year of the pandemic wasn’t as quite as dramatic as in the first year: Overdose deaths were up about 15% between 2020 and 2021, compared with a 30% jump between 2019 and 2020. But the change is still stark. In 2021, about 14,000 more people died of overdose deaths in than in 2020, the CDC data shows.

“This is indeed a continuation of an awful trend. Rates of overdose deaths have been on an upward climb for decades now, increasing at unprecedented rates right before the beginning of the Covid-19 pandemic in the U.S.” ~Dr. Nora Volkow, director of the National Institute on Drug Abuse.

The pandemic accelerated trends that were already heading in the wrong direction, and experts say that reversing course will require concentrated efforts — and it will take time, both strategically and ideologically.

Treatment for drug abuse was lacking even before the pandemic. In 2019, more than 20 million people ages 12 and older reported having a substance abuse disorder, only 10% of whom reported receiving care, according to a report from the US Department of Health and Human Services’ Substance Abuse and Mental Health Services Administration.

And a report from the Kaiser Family Foundation cites evidence that access and utilization of these services has gotten even worse during the pandemic.

The illicit drug supply in the US has also seen a “massive shift” over the past two decades. Increasing use of synthetic drugs caught the attention of experts before Covid-19 hit, but the pandemic may have exacerbated the problem. With international travel limited, synthetics that are easier to manufacture and more concentrated were likely more efficient to smuggle across borders, Volkow said.

Overdose deaths involving synthetic opioids such as fentanyl, psychostimulants such as methamphetamine, and cocaine all increased between 2020 and 2021, according to the new CDC data. Deaths involving natural or semi-synthetic drugs, such as prescription drugs, fell slightly from the year prior.

My opinion? This is a devastating milestone in the history of the overdose epidemic in America. When we report numbers, we must remember that each number represents an individual, their families, and their communities. Compounding the issue is the fact that the WA Supreme Court struck down Washington felony drug possession law. In the wake of the Blake decision on February 25, people can no longer be arrested for simple drug possession in Washington state.

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

Prosecutor’s “Gorilla Pimp” Comment Admonished by High Court

Gorilla Pimp the skunk ape by seraphonfire on DeviantArt

In State v. McKenzie, the WA Court of Appeals reversed the defendant’s convictions because the prosecutor improperly injected race into the trial and used the term “gorilla pimp” to describe the defendant.

BACKGROUND FACTS

In 2018, the defendant Mr. McKenzie, a 27-year-old Black man, was perusing the dating application Skout when he came across the profile for a white female named “‘Samantha.’”  Samantha’s profile listed her age as 18, and stated “‘Fun Times. My age is wrong. Daddy wanted.’” Samantha was actually a fictional person created by Detective Rodriguez of the Washington State Patrol’s missing and exploited children’s task force. They conduct undercover investigations to find sexual predators in part by using fictional profiles on social media and dating websites. The profile picture Mr. McKenzie viewed was that of an undercover female officer who was at least 22 years old.

The two continued to chat on Skout and then moved to text messaging on their
phones. During the text messaging, Samantha asked Mr. McKenzie if he was interested in being her pimp to which he replied, “Oh nah im not doing all that,” “Thats low. I dont need that & dont have time for all that. If you have a way to get money I support that,” and “But pimping? No thanks missed me with that one.”

Samantha made repeated suggestions that she and Mr. McKenzie meet up. The two discussed where to meet and Mr. McKenzie expressed concern that Samantha was “setting him up.” Later Mr. McKenzie asked Samantha about whether she had condoms. Mr. McKenzie drove from Seattle to Puyallup and waited for Samantha at an agreed meet location for just under 30 minutes. Unbeknownst to Mr. McKenzie, he was under surveillance the entire time he waited. After Mr. McKenzie messaged Samantha that he was giving up and leaving, law enforcement surrounded Mr. McKenzie’s car and placed him under arrest. A search of Mr. McKenzie’s car revealed a box of condoms on the passenger seat.

The State charged Mr. McKenzie with sex offenses to include one count of attempted second degree rape of a child and one count of communication with a minor for immoral purposes. Mr. McKenzie exercised his right to a jury trial.

At trial, Detective Rodriguez took the witness stand. The prosecutor initiated the following
exchange:

Q: Are you familiar with the terms gorilla pimp and romance pimp?
A: Yes.
Q: What are those?
A: A gorilla pimp is someone who is very aggressive. They’re very direct. They’re going to tell you what they want. “This is what you’re going to do.” I’ve had them try to get me or the people they’re victimizing to pay them for that. For them to be sexually exploited, they actually want the victim to pay them for it. As far as a romance pimp, they’re going to come across as your boyfriend or your friend. They’re going to romance you, get you into the situation where then they have control. They can continue to play the romance role or they can switch to a more aggressive pimp or they can go back and forth.
Q: So they’re not mutually exclusive?
A: No.
Q: The romance pimp angle can be used to gain confidence with a young person. And then once you’re engaged with them, the roles can change?
[DEFENSE COUNSEL]: Your Honor, leading.
THE COURT: Sustained.
Q: Can the roles change once they’re engaged?
A: Yes.
Q: Do Mr. McKenzie’s answers about, “I’m not into that. I would treat you right,” all of those kind of things, do they negate the possibility that he is looking to put Sam out?
A: No.

The defense never voiced a specific objection to the gorilla pimp concept. The prosecutor made no further reference to it. A jury found Mr. McKenzie guilty as charged. The court subsequently imposed a standard range sentence of 76.5 months to life in prison. Mr. McKenzie appealed on arguments that the prosecutor engaged in misconduct by injecting the racially charged term “gorilla pimp” into the trial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reversed the Defendant’s conviction. It reasoned that use of the term “gorilla pimp” by the State was not harmless error beyond a reasonable doubt. The court said that when a prosecutor improperly injects race into a criminal trial, a court will generally reverse the conviction.

“Racist rhetoric has no place in our justice system. It is hurtful, thwarts due process, and undermines the rule of law. ~WA Court of Appeals

The Court discussed the State’s argument that the term used was actually “guerrilla pimp.” However, that argument was unpersuasive to the court, which found the analogy of a “gorilla” to be particularly concerning:

“At this point in our history we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric,” said the Court of Appeals. It reasoned that individuals involved in criminal enterprises use racialized language that is sometimes offensive. However, that is no excuse for outsiders to do the same.

“The only purpose served by referencing the gorilla pimp concept was to tap into deepseated racial prejudice by comparing Black human beings to primates. The State cannot prove that this racist rhetoric was harmless beyond a reasonable doubt. We therefore reverse Mr. McKenzie’s conviction.” ~WA Court of Appeals

My opinion? Great decision. The type of racist rhetoric invoked by the Prosecution appears to have especially strong pull. A six-year study of undergraduates at Stanford University and Pennsylvania State University showed young people are swayed by Black-ape associations, even when they claim to know nothing about the historical context of racist simianization. According to this study, undergraduates who were exposed to words associated with apes were more likely to condone the beating of those in police custody when they thought the suspect was Black.

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

Confrontation, Video Testimony & COVID

Legal Videography - Compass Reporting | Litigation Support Concierge

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.

Animal Cruelty Can Be DV

Animal Cruelty and Domestic Violence - The Link Between Cruelty to Animals and Violence Toward Humans

In State v. Abdi-Issa, the WA Supreme Court held that Animal Cruelty may be designated
as a crime of Domestic Violence.

BACKGROUND FACTS

Ms. Fairbanks began dating Mr. Abdi-Issa shortly after she moved to Seattle with her dog, Mona. Mona was a small Chihuahua and Dachshund mix. Fairbanks testified she was close to Mona. Abdi-Issa, however, had a history of disliking Mona. Abdi-Issa was abusive toward Fairbanks and Mona, even threatening to kill them both.

One evening, while they were out in Seattle’s International District, Abdi-Issa insisted Fairbanks let him take Mona on a walk. Fairbanks objected, but Abdi-Issa ignored her and left with Mona. Not long after he left, Abdi-Issa called Fairbanks claiming that Mona had gotten out of her harness and that he could not find her. Fairbanks did not believe him, as Mona had never gotten out of her harness before. Abdi-Issa refused to tell her more. Fairbanks began to panic after she heard Mona yelping over the phone.

Around that same time, bystanders heard a sound of great distress. One of the bystanders was Ms. Ludin. She followed the sound and saw Abdi-Issa beating and making “brutal stabbing” motions toward Mona. She also saw Abdi-Issa kick Mona so hard that she went up into the air and into the bushes. Each time Mona was struck she made a screeching, screaming, pained, sound that was at last followed by silence.

Seattle Police Officers responded to the 911 call. Mona was found, still alive, underneath a bush. Officers transported Mona to an emergency veterinary clinic. Mona arrived at the clinic nearly comatose. She had severe swelling in her brain, bruising on her chest, and a wound to the top of her head. By the time Fairbanks arrived at the veterinary clinic Mona had died. A necropsy found that Mona had died from multiple instances of blunt force trauma.

The State charged Abdi-Issa with First Degree Animal Cruelty and sought a domestic violence designation. The State also charged two sentencing aggravators: (1) that the crime had a destructive and foreseeable impact on persons other than the victim, and (2) that Abdi-Issa’s conduct during the crime of domestic violence manifested deliberate cruelty or intimidation of the victim. Abdi-Issa unsuccessfully moved to dismiss the domestic violence designation and aggravators multiple times.

The jury found Abdi-Issa guilty of animal cruelty. The jury also found that Abdi-Issa and Fairbanks were in a domestic relationship prior to the crime. This allowed for a domestic violence designation.

The court imposed the maximum 12-month sentence for the crime of animal cruelty, and an additional 6 months for the aggravator, sentencing Abdi-Issa to an 18-month prison sentence. Based on the domestic violence designation, the court also imposed a no-contact order prohibiting Abdi-Issa from having contact with Fairbanks.

However,  the Court of Appeals vacated the domestic violence designation, the no-contact order, and the sentencing aggravator. The State appealed. The WA Supreme Court granted review and addressed the State’s appeal.

COURT’S ANALYSIS AND CONCLUSIONS

1. Animal Cruelty as a Crime of Domestic Violence

First, the WA Supreme Court decided that Animal Cruelty may be designated a crime of domestic violence. At first, the Court said Abdi-Issa correctly argued that Animal Cruelty is not a designated DV crime.

“But the list of crimes is explicitly nonexclusive,” wrote Justice Gonzalez. The court further reasoned that many of the designated DV crimes, including Burglary and Malicious Mischief, are against a victim’s property.

“Pets, as a matter of law, are considered personal property. Here, Fairbanks was directly harmed as a result of Abdi-Issa’s violent killing of her beloved pet and companion. She is plainly a victim of Abdi-Issa’s crime.” ~Justice Steven C. Gonzalez, WA Supreme Court

2. Sentencing Aggravator—Impact on Others

Next, the Court addressed whether the “Impact on Others” sentencing aggravator was appropriate. Here, defendants face increased consequences if the offense involves a “destructive and foreseeable impact on persons other than the victim.” Justice Gonzalez emphasized how Ms. Ludin, the bystander who witnessed the attack on Mona, was deeply affected by the incident.

“Ludin made the 911 call and was very distressed when the police arrived. Ludin testified that she had a severe panic attack that night, sitting in her car for a long time before she was calm enough to drive herself home. She continued to have flashbacks, had trouble sleeping, and would go into a state of panic whenever she heard a ‘high pitched, squeaky sound.’ Abdi-Issa’s act had a destructive and foreseeable impact on Ludin.

Abdi-Issa’s actions impacted someone other than Fairbanks. This emotional and psychological trauma will be something that Ludin and Fairbanks continue to carry. The sentencing aggravator was properly applied in this case.” ~Justice Steven C. Gonzalez, WA Supreme Court

Consequently, the Court held that Animal Cruelty can be designated as a DV crime and that the sentencing aggravators were appropriate.

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