Category Archives: felony

Sex Offenders & Cyberspace

Bellingham Defense Attorney, Computer Crimes, Constitutional Rights, felony, First Amendment, Sex Crimes, Skagit County Criminal Defense, Social Media, United States Supreme Court, Whatcom County Criminal Defense, , ,

Sex offenders active on social media in Lafayette despite ban

In Packingham v. North Carolina, the United State Supreme Court outlawed a North Carolina statute that makes it a felony for a registered sex offender to access a commercial social networking web site. The statute restricts lawful speech in violation of the First Amendment.

BACKGROUND FACTS

In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. North Carolina has prosecuted over 1,000 people for violating this law.

The Defendant was charged after posting a statement on his personal Facebook profile about a positive experience in traffic court. The trial court denied petitioner’s motion to dismiss the charges on the ground that the law violated the First Amendment. He was convicted and given a suspended prison sentence. On appeal, the State Court of Appeals struck down the statute on First Amendment grounds, however, the North Carolina Supreme Court ended up reversing the decision.

The United States Supreme Court granted review on the issue is whether the Carolina Statute was permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.

COURT’S ANALYSIS & CONCLUSION

The U.S. Supreme Court held that the statute impermissibly restricts lawful speech in violation of the First Amendment.

First, the Court reasoned that the First Amendment allows all persons have access to places where they can speak, listen, reflect, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide variety of protected First Amendment activity on any number of diverse topics. Reno v. American Civil Liberties Union, 521 U. S. 844, 870. The Court stated that the Internet’s forces and directions are so new, so protean, and so far reaching that courts must be conscious that what they say today may be obsolete tomorrow. Indeed, the Court expressly proceeded very carefully in its analysis:

“Here, in one of the first cases the Court has taken to address the relationship between the First Amendment and the modern Internet, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”

That said, the Court bluntly reasoned that the statute is not narrowly tailored to serve a significant governmental interest.  Like other inventions heralded as advances in human progress, the Internet and social media will be exploited by the criminal mind. It is also clear that sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people, and that a legislature may pass valid laws to protect children and other sexual assault victims.

“Two assumptions are made in resolving this case,” said the Court. First, the law applies to commonplace social networking sites like Facebook, LinkedIn, and Twitter. Second, the First Amendment permits a State to enact specific, narrowly-tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.

However, the Court reasoned that even with these assumptions, the North Carolina statute enacts unprecedented prohibitions in the scope of First Amendment speech it burdens:

“Social media allows users to gain access to information and communicate with one another on any subject that might come to mind. With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.”

The Court said that even convicted criminals might receive legitimate benefits from the social media for access to the world of ideas, particularly if they seek to reform and to pursue lawful and rewarding lives.

Consequently, the Court reasoned that North Carolina failed to prove that its sweeping law was necessary or legitimate to serve its purpose of keeping convicted sex offenders away from vulnerable victims. “No case or holding of this Court has approved of a statute as broad in its reach.” With that, the U.S. Supreme Court reversed and remanded Mr. Packingham’s criminal conviction.

My opinion? Excellent decision. Granted, nobody wants anyone using the internet for predatory purposes. Nevertheless, its simply unconstitutional to totally prohibit people – even convicted sex offenders – from using the internet and social media. There’s plenty of spyware, child molestation sting operations and government internet monitoring happening on the internet to reduce the risk of predatory behavior. There’s no need for the Government to make statutes which violate Constitutional rights.

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.

Pretrial Publicity & Change of Venue

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Firearm, Gunwall Analysis, Jury Selection, Jury Trial, Pretrial Publicity, Skagit County Criminal Defense, Venue, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Munzanreder, the WA Court of Appeals held that the jury selection process used by the trial court – which included a written questionnaire with a number of questions regarding exposure to media reports and questioning each juror individually about media exposure – protected the defendant’s constitutional rights to an impartial venue. Therefore, the trial court did not abuse its discretion when it denied the motion to change venue.

BACKGROUND FACTS

John J. Munzanreder appealed his conviction for the first degree murder of his wife. Because of the sensational nature of the alleged crime, local media extensively covered his case from arrest through trial.

Munzanreder worked with Juan Ibanez at Valley Ford in Yakima, Washington. In
early February 2013, Ibanez approached Munzanreder and asked him for money for a
toolbox. Munzanreder agreed to give him the money ifhe helped get rid of somebody.
Munzanreder told Ibanez that he wanted help killing his wife, Cynthia, and would give
him $20,000. Ibanez said he would help, but he would not kill her.

Munzanreder gave Ibanez cash and directed him to purchase a gun. Munzanreder
told Ibanez his plan: Munzanreder and his wife would go the movies, he would shoot her
with the new gun, he would then throw the gun to Ibanez in some nearby bushes, and
Ibanez would run away with the gun.

On February 28, 2013, the Munzanreders went to see a movie at the Majestic
Theater in Union Gap, Washington, a small city immediately south of Yakima. Ibanez received a prearranged text message from Munzanreder that the plan would be executed
and went to the theater and waited in the bushes adjacent to the theater’s parking lot.

After the movie, as the couple approached their car, Munzanreder shot his wife with the
gun purchased by Ibanez. Munzanreder then threw the gun into the bushes where Ibanez
waited. As Ibanez left the scene with the gun, he ran past a couple near his car.

Law enforcement arrived and questioned witnesses. Munzanreder told law
enforcement he heard a shot and saw a man in black clothes running away. Munzanreder
said he had followed the man, but fell and injured himself, developing a black eye.

Munzanreder’s wife later died from her injuries.

Law enforcement continued to investigate. They interviewed Ibanez, whose car
had been reported at the crime scene. Ibanez quickly confessed and told law enforcement
of the details of the crime. Media coverage of both the murder and the arrests quickly
saturated Yakima County.

Munzanreder was charged with Murder in the First Degree. The State also sought a Deadly Weapon Enhancement because the crime occurred with a handgun.

The Jury Questionnairre

Defense counsel and the State had worked together to create an agreed juror
questionnaire. The purpose of the questionnaire was to uncover juror bias, so that the
trial court and the parties could individually interview venire jurors with possible bias in
open court but outside the presence of other venire jurors.

The questionnaire contained many questions, including questions focusing on
pretrial publicity about the case. Those questions asked the venire jurors to list media
sources they used, whether they generally believed the media, whether they thought the
media was fair to both sides of a case, and what criminal cases they followed in the
media. It also specifically asked about Munzanreder’s case. The questionnaire asked
venire jurors if they knew information about the case from any sources, and concluded the
section by asking if they had formed any opinions about the case. The questionnaire also
asked venire jurors if they wanted to discuss their answers separately from other jurors.

The completed questionnaires revealed that 105 of the remaining 128 venire jurors knew
about the case; of these 105, 24 had formed opinions; and of these 24, most believed
Munzanreder was guilty.

Before the remaining venire panel returned to the courtroom, Munzanreder orally
moved for a change of venue. The motion was anticipated because Munzanreder had
earlier said he would make such a motion, and had provided the trial court and the State
with copies of local media stories and media Facebook posts.

The State, although opposing Munzanreder’s motion, indicated the trial court might give additional peremptory challenges. Munzanreder responded that he might ask for additional peremptory challenges, but would not do so until after the court ruled on his motion. The trial court took the motion under advisement and said it would make its ruling later in the jury selection process.

The parties completed voir dire and then went through the process of selecting the
Jury. The trial court permitted each party 6 peremptory challenges for the first 12 jurors,
and 1 additional peremptory challenge for each of the 3 alternate jurors. Munzanreder
never asked for additional peremptory challenges.

The panel was sworn in. The trial court provided the panel various preliminary
instructions and then excused them for lunch. With the panel excused, the trial court gave
its oral ruling denying Munzanreder’s motion to change venue.

Over the next several days, the parties presented their evidence.

The jury returned a guilty verdict on 1st degree murder with a firearm
enhancement. The trial court sentenced Munzanreder to 340 months of incarceration.

Munzanreder timely appealed. His principal arguments on appeal are the trial court abused its discretion when it denied his motion to change venue, and the voir dire process used by the trial court failed to protect his constitutional right to an impartial jury.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court applied a Gunwall analysis to determine if the Washington Constitution provides greater protection than the United States Constitution in a particular context.  A Gunwall analysis must be performed, if litigants want the court to consider whether a parallel constitutional provision affords differing protections.

Here, the Court found that Munzanreder’s state constitutional right to an impartial jury should be interpreted as providing the same degree of protection as the parallel federal constitutional right. The Court similarly held that article I, section 22 of the WA Constitution’s right to an impartial jury does not provide any more protection than the Sixth Amendment.

Second, the Court of Appeals raised and dismissed Munzanreder’s arguments that the voir dire process employed in his case was insufficient. It reasoned that under Lopez-Stayer v.
Pitts, a trial court has considerable discretion in conducting voir dire. Abuse of discretion occurs when a trial court bases its decision on untenable grounds or untenable reasons.

Here,  the Court of Appeals discussed how extensive and meticulous jury selection was in this case. The trial court summoned 243 potential jurors. The parties worked together to craft an extensive juror questionnaire that satisfied the State, Munzanreder, and the trial court. The trial court granted several dozen individual interviews in open court outside the presence of other venire jurors.

The trial court was fully involved with the process, and asked questions designed to expose bias and to ensure that jurors would reach a verdict based on the evidence presented at trial and on the court’s instructions on the law. Jury selection took over four days. Munzanreder did not request additional peremptory challenges, despite knowing he had that option. Munzanreder simply asserts now that the process was insufficient, although he was heavily involved at trial in developing the process used. Ultimately, the Court of Appeals decided that because Munzanreder does not show an abuse of discretion, his appeal on this issue fails.

Third, the Court of Appeals raised and dismissed Munzanreder’s arguments that the jury selection process used by the trial court was constitutionally deficient. He attempts to punctuate his point by showing that four biased jurors were empaneled. The Court reasoned that A party may challenge a juror for cause under CrR 6.4(c); and RCW 4.44.170. The trial court is in the best position to determine whether a juror can be fair and impartial because the trial court is able to observe the juror’s demeanor and evaluate the juror’s answers to determine whether the juror would be fair and impartial. For this reason, this court reviews a trial court’s denial of a challenge for cause for a manifest abuse of discretion.

Here, the Court of Appeals found no manifest abuse of discretion. Munzanreder failed to use his peremptory challenges to remove juror #51, a potentially bad and unbiased juror. He also elected not to request additional peremptory challenges. If the trial court erred in denying Munzanreder’ s for cause challenge of venire juror 51, because Munzanreder elected not to remove venire juror #51 with his allotted peremptory challenges or by requesting additional challenges, Munzanreder waived that error.

Fourth, the Court of Appeals raised and dismissed Munzanreder’s arguments that the trial court abused its discretion when it denied his motion for a change of venue. He primarily argues the pretrial media publicity was overwhelmingly inflammatory, which prejudiced the jury pool against him. The Court reasoned that in order to prevail on a change of venue motion, the defendant need only show a probability of unfairness or prejudice. Sheppard v. Maxwell, State v. Rupe. The following nonexclusive factors aid our review of whether a trial court abused its discretion in denying a change of venue motion:

“(I) the inflammatory or noninflammatory nature of the publicity; (2) the degree to which the publicity was circulated throughout the community; (3) the length of time elapsed from the dissemination of the publicity to the date of trial; (4) the care exercised and the difficulty encountered in the selection of the jury; (5) the familiarity of prospective or trial jurors with the publicity and the resultant effect upon them; (6) the challenges exercised by the defendant in selecting the jury, both peremptory and for cause; (7) the connection of government officials with the release of publicity; (8) the severity of the charge; and (9) the size of the area from which the venire is drawn.”

Here, the Court of Appeals reasoned that although the initial venire pool provided substantial challenges because of the trial court’s careful process for selecting a jury, it was highly confident that 11 of the 12 empaneled jurors were impartial.

“If venire juror #51 was biased, Munzanreder had the opportunity to remove him,” said the Court. “Munzanreder elected not to use any of his peremptory challenges to remove venire juror 51, and he did not request additional peremptory challenges. These two facts strongly suggest that even Munzanreder believed the empaneled jury was fair and impartial.” With that, the Court of Appeals concluded the trial court did not abuse its discretion when it denied Munzanreder’s motion to change venue.

Consequently, the Court of Appeals confirmed Munzanreder’s conviction.

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

“Rough Estimates” Can’t Support a Conviction for Property Crimes.

Bellingham Defense Attorney, Burglary, Evidence, felony, Property Crimes, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Williams, the WA Court of Appeals decided that a victim’s “rough estimate” regarding the value of stolen property of “roughly $800” will not support a conviction for possession of property in the second degree. While the owner of a chattel may testify to its market value without being qualified as an expert on valuation, the owner must testify to an adequate basis of his opinion of value to support a conviction.

FACTS & BACKGROUND

In May 2014, the Spokane Police Department received calls complaining of a man stalking through backyards in a west Spokane neighborhood. On May 6, 2014, one caller, Brad Dawson, observed the man carrying two sports duffel bags and possibly a screwdriver. Also on May 6, 2014, someone burglarized the home of David and Joan Nelson.

Joan Nelson’s brother, John Johnston, drove through the neighborhood in an attempt to apprehend the burglar. After inspecting five homes, Johnston espied a kneeling gentleman, with two duffels bags astride, employing a screwdriver to pry open a lock on a storage facility. The man fled when Johnston yelled.

Johnston called 911 and tracked the fleer as the fleer scattered from yard to yard and hid in changing locations. Johnston kept contact on his cellphone with Spokane police. Spokane police officers arrived and apprehended the burglar, Leibert Williams. Law enforcement officers found a duffel bag, a Bluetooth speaker, a laptop, running shoes, a jacket, and two rings belonging to Adam Macomber in the possession of Williams. Days earlier, Macomber had discovered the property missing from his apartment.

The State of Washington charged Leibert Williams with five crimes: (1) residential burglary, (2) second degree burglary, (3) attempted second degree burglary, (4) attempted theft of a motor vehicle, and (5) possession of stolen property in the second degree. The State added the final charge near the date of trial.

During trial, Macomber identified those items missing from his apartment. However, he only gave “rough estimates” of $800 for the value of his items.

The State presented no other testimony of the value of stolen goods. And the trial court denied a request by Leibert Williams for a lesser included offense instruction with regard to second degree possession of stolen property.

The jury found Williams guilty of first degree criminal trespass, attempted second degree burglary, vehicle prowling, and second degree possession of stolen property. The jury acquitted Williams of residential burglary.

Williams’ appeal concerns the possession of stolen property conviction.

ANALYSIS & CONCLUSION

The Court reasoned that Macomber’s testimony failed to show beyond a reasonable doubt that the value of his stolen property exceeded $750 when Macomber said, “I could give a rough estimate . . .  I would say roughly $800.”

It further reasoned that “value” for the purposes of theft means the market value of the property at the time and in the approximate area of the theft. “Market value” is the price which a well-informed buyer would pay to a well-informed seller, when neither is obliged to enter into the transaction. In a prosecution, value need not be proved by direct evidence. Rather, the jury may draw reasonable inferences from the evidence, including changes in the condition of the property that affect its value.

Here, Adam Macomber testified to a “rough estimate” value of the stolen goods to be $800, a figure close to the minimum amount required to convict of $750. He listed the property taken from him, but did not describe the condition of the property when stolen. He also failed to disclose the purchase date or the purchase price of each item.

“Macomber did not testify to the basis of his opinion of value. For all we know, he used the purchase price of the goods, the replacement cost of the goods, or some intrinsic value to himself.”

With that, the Court decided that the proper remedy for the insufficiency of evidence was to dismiss the charge for possession of stolen property in the second degree. This somewhat extreme measure was partially based on the trial court’s refused to instruct the jury on the lesser included offense of third degree possession: “This court lacks authority to direct the entry of judgment of the lesser included offense if the jury was not instructed on that offense.”

My opinion? Good decision. My heart goes out to the victim, however, courts need more than mere “rough estimates” when it comes to assigning a value to property. Indeed, property crimes are assigned a seriousness level – from simple misdemeanors through Class A felonies – by identifying the value of the property which was stolen or destroyed. These are not small matters. There’s a big difference between felonies and misdemeanors. Therefore, it’s extremely important to be specific and correct on these matters.

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.

 

Opening the Door

Bellingham Defense Attorney, Evidence, felony, Ineffective Assistance, Jury Trial, Opening the Door, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Wafford, the WA Court of Appeals that a defendant’s counsel “opened the door” to suppressed evidence during opening statement, and that the proper remedy was to admit evidence that the court had previously ruled inadmissible.

FACTS & BACKGROUND

The incidents began years before. In 2005, T.H.’s mother heard that eight-year-old T.H. had told a friend that something inappropriate happened with Mr. Wafford. After reporting to police, T.H.’s mother took T.H. to be interviewed at Dawson Place, the Snohomish County Center for Child Advocacy. There, a child forensic interview specialist talked with T.H., and their conversation was video-recorded. T.H. did not make a specific disclosure of sexual abuse by Wafford, though she did appear to nod affirmatively in response to one question about inappropriate sexual contact. The State did not investigate further or charge Wafford.

However, Mr. Wafford continued to sexually abuse H.F. as well as her sister T.H. Eventually, the State charged Wafford with crimes against both T.H. and H.F.  As to T.H., Wafford was charged with first degree rape of a child, first degree child molestation, and first degree incest. As to H.F., Wafford was charged with first degree rape of a child, first degree child molestation, and third degree child molestation.

PRE-TRIAL SUPPRESSION OF VIDEO INTERVIEW

Before trial, the court conducted a child hearsay hearing at which it concluded that the 2005 recorded interview of T.H. was inadmissible. The court reasoned that because T.H. never actually described an act of sexual contact, her statements were not admissible under the child hearsay statute.

TRIAL

During defense counsel’s opening statement, she referred explicitly to the video of T.H.’s interview: “Mariyah brought both H.F. and T.H. to Dawson Place in 2005. Nova Robinson interviewed on video T.H., but T.H. denied that anything was happening to her.” The State did not object.

After opening remarks, the State requested that the court admit the interview video that had been previously excluded. The State argued that when defense counsel mentioned the video, she opened the door to its admission. The court found that defense counsel opened the door and admitted a portion of the video. Ultimately, the jury found Wafford guilty of first degree child molestation of T.H., but was unable to reach a verdict on the remaining counts. The court sentenced Wafford to 68 months in prison.

Wafford appealed on the argument that, as a matter of law, comments made by counsel during opening statements cannot open the door to otherwise inadmissible evidence.

ANALYSIS AND CONCLUSION

The Court reasoned that (1) a party who introduces evidence of questionable admissibility may open the door to rebuttal with evidence that would otherwise be inadmissible, and (2) a party who is the first to raise a particular subject at trial may open the door to evidence offered to explain, clarify, or contradict the party’s evidence. State v. Jones, citing 5 KARL B. TEGLAND, WASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 103.14, at 66-67 (5th ed.2007).

With that background, the Court addressed Wafford’s argument that because a comment made during an opening statement  is not evidence, it cannot open the door pursuant to State v. Whelchel and  Corson v. Corson.

However, the Court distinguished these cases. First, it reasoned that Whelchel does not support the broad proposition that opening statements cannot open the door because the evidence in question in Whelchel was admissible when the parties made opening statements. Second, the Corson case was distinguishable because in that case the trial court wrongfully admitted irrelevant and prejudicial evidence in response to an improper opening statement when other more effective means of ensuring a fair proceeding are available. Consequently, the Corson case did not hold that opening statements can never open the door to otherwise inadmissible evidence.

Next, the Court rejected Wafford’s argument that comments made during opening statements cannot open the door. First, such a rule would be contrary to the general rule permitting trial courts the discretion to determine the admissibility of evidence. Second, whether the issue arises from the statement of counsel or the testimony of a witness is immaterial to the question faced by the trial judge: to what extent, if any, has the statement compromised the fairness of the trial and what, if any, response is appropriate:

“In answering this question, the trial judge should have a range of options at his or her disposal. A judge may admonish the jury to disregard certain statements or reiterate its instruction that opening statements are not evidence. The judge may allow testimony about otherwise inadmissible evidence, while continuing to exclude the exhibit or document which contains the evidence. Or the judge may find that a party has opened the door to otherwise inadmissible evidence. The appropriate response is that, which in the discretion of the trial judge, best restores fairness to the proceeding.”

Finally, the Court rejected Wafford’s argument that the trial court mistakenly admitted the recording because it was inadmissible hearsay and therefore incompetent evidence.  Under ER 801(d)(1)(ii), a statement is not hearsay if “the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is… consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive. . . .” Here, however, the victim testified. The court concluded her affirmation of Wafford’s unlawful sexual conduct was consistent with her testimony and is thus not hearsay under ER 801(d)(1).

With that, the Court upheld Wafford’s conviction and sentencing.

My opinion?

It is well settled in Washington that a party that introduces evidence of questionable admissibility runs the risk of “opening the door” to the admission of otherwise inadmissible evidence by an opposing party.

For this reason, it is mandatory that attorneys exercise extreme discretion with their comments and questions during trial. Defense attorneys must avoid discussing evidence they work so hard to suppress. Not only can one “open the door” during direct and cross examination of witnesses, but also opening statements.

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

State v. Armstrong: Prosecutor Not Obligated to Bring Video Evidence

Bellingham Defense Attorney, Constitutional Rights, Discovery, Domestic Violence, Due Process, Evidence, felony, Jury Trial, law enforcement, No Contact Order, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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I’m often asked by Clients, “Why can’t you make the Prosecution get video surveillance evidence from crime scene?” This recent case explains why.

In State v. Armstrong, the WA Supreme Court held that the Prosecutor’s failure to obtain a copy of the AM/PM store’s surveillance video prior to the store’s destruction of the video pursuant to the store’s policy, did not violate the defendant’s due process rights.

FACTS & BACKGROUND

A no-contact order existed prohibiting Defendant Dennis Armstrong from contacting his former partner, Nadia Karavan. Nonetheless, on April 20, 2014, they agreed to meet at a bus stop in violation of the No-Contact Order. As the two talked, Armstrong became angry. He yelled and hit the wall of the bus stop shelter. Armstrong then hit Karavan twice in the face with an open fist.

After a brief struggle, Karavan ran to a nearby AM/PM gas station, and Armstrong followed her. According to the store clerk, Todd Hawkins, the two exchanged words. Armstrong followed Karavan around the store for several minutes, and Karavan asked Hawkins to call the police several times. When Hawkins finally called the police, Armstrong left the store.

Officers responded to the 911 call. Officer Martin noticed that Karavan had a slightly swollen, red abrasion on the side of her face.

Armstrong denied spending time inside the AM/PM. In response, the officers told Armstrong that surveillance video from the AM/PM would show what really happened. The officers repeatedly emphasized the video and told Armstrong that he should “tell the truth” because they had the “whole thing on video.”

The State charged Armstrong with a domestic violence felony violation of a court order.

Before trial and again during trial, Armstrong moved to discharge his counsel. One of his reasons was that counsel failed to give him the surveillance video as he requested. The prosecutor told the court that the State had never possessed the video. The court denied Armstrong’s motions.

At trial, Hawkins (the AM/PM employee) testified that there were about 16 cameras around the store: a few of which covered the gas pumps and one that may have shown a slight, low view shot of the bus stop. Although Hawkins testified that police had requested surveillance video from AM/PM in the past, no officer requested footage from the night of this incident. Hawkins had previously reviewed the video from that night and testified that it showed what he described in his testimony, but per AM/PM policy, the video had since been destroyed.

At trial, the officers gave various reasons why they never collected the video. Officer Martin testified that she heard Officer Elliot ask about the video, but she assumed it was the responsibility of someone else at the scene to investigate the video. Officer Rodriguez testified that he never viewed the video. He simply followed Officer Elliot’s lead when the two were questioning Armstrong. Officer Elliot was unavailable to testify at trial. Detective Rande Christiansen, who had been assigned to do the follow-up investigation on the case, testified that he did not investigate any video from the AM/PM because he did not know such video existed.

The jury returned a general guilty verdict despite the lack of surveillance video evidence.

On appeal – and with other arguments, Armstrong claimed that the police violated his right to due process because they failed to collect video surveillance from the AM/PM after using that video as a tool when interviewing Armstrong at the scene.

ANALYSIS & CONCLUSIONS

Ultimately, the Court held that Armstrong failed to show that the police acted in bad faith when they did not collect video surveillance that was only potentially useful evidence.

The Court reasoned that under the Fourteenth Amendment to the federal constitution, criminal prosecutions must conform with prevailing notions of fundamental fairness, and criminal defendants must have a meaningful opportunity to present a complete defense. Consequently, the prosecution has a duty to disclose material exculpatory evidence to the defense and a related duty to preserve such evidence for use by the defense.

The court also reasoned that although the State is required to preserve all potentially material and favorable evidence, this rule does not require police to search for exculpatory evidence. And in order to be material exculpatory evidence – that is, evidence which has value to the defense of which can alter or shift a fact-finder’s decision on guilt or innocence – the evidence must both possess an exculpatory value that was apparent before it was destroyed and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.

Finally, the court reasoned that the police’s failure to preserve “potentially useful evidence” was not a denial of due process unless the suspect can show bad faith by the State. The presence or absence of bad faith turns on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Also, acting in compliance with its established policy regarding the evidence at issue is determinative of the State’s good faith.

“Armstrong asserts that the video surveillance was potentially useful evidence,” said the Court. “Therefore, he must show that the police acted in bad faith.” According to Armstrong, the police acted in bad faith because they told him during the interview that they were going to collect the video but they never actually collected it. Armstrong describes this as the police acting with an “extreme cavalier attitude” toward preserving potentially useful evidence. The Court further reasoned that beyond this failure to collect the video, Armstrong offers no evidence of bad faith, such as improper motive.

“Armstrong has failed to show that the police acted in bad faith when they failed to collect the surveillance video from the AM/PM. The testimony of the officers indicates that the video went uncollected due to mere oversight. Armstrong has presented no evidence that the police had an improper motive. At most, Armstrong has shown that the investigation was incomplete or perhaps negligently conducted, but that is not enough to show bad faith.”

With that, the Court upheld his conviction.

My opinion? I understand the Court’s opinion insofar as the Prosecution should not be burdened with providing exculpatory evidence, especially if that evidence is unimportant – or not material – to the larger issues of guilt.

However, I would object to the AM/PM employee  discussing the  video as facts that are not admitted into evidence. Under this objection when the attorney claims that “the question assumes facts not in evidence,” what he is really saying is that the facts that are being presented to the witness are presumably not yet in evidence and therefore, how can this witness properly answer the question if those facts have not been put before this jury?

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.

No-Contact Order Held Invalid

Alford Plea, Bellingham Defense Attorney, felony, No Contact Order, Sentencing, Skagit County Criminal Defense, Tampering With a Witness, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Torres, the WA Court of Appeals decided a lower court improperly imposed a 5-year no contact order between the defendant and his son in a Witness Tampering prosecution.

BACKGROUND FACTS

Mario Torres is the father of M.T. (born 2003) and N.B. (born 2012). N.B. lived with his mother. However, on the morning of December 22, 2014, he was left in Mr. Torres’s care while N.B.’s mother went shopping. M.T. was also with Mr. Torres at the time. On December 23, N.B.’s mother and grandmother took him to receive medical care after he was found unresponsive. N.B. died a few days later. N.B.’s injuries suggested his death was a homicide.

Police Interview With M.T.

Part of law enforcement’s investigation into N.B. ‘s death involved a forensic interview of M.T. He originally told the interviewer that N.B. was responsive while in Mr. Torres’s care and ate some “Chicken McNuggets” during this time. But M.T. later told the interviewer this was not true. M.T. then said that he heard a loud bang while Mr. Torres was caring for N.B. and N.B. started loudly crying. Mr. Torres later told M.T. he had accidentally stepped on N.B. ‘s leg causing him to fall and strike the bedpost. M.T. never saw N.B. get up again after this. M.T. told the interviewer that both his parents approached him at his grandmother’s home earlier that day and told him to make up a story about N.B. eating Chicken McNuggets, and not mention that N.B. had bumped his head. Additionally, Mr. Torres allegedly told M.T. to “make up lies” about what happened.

Police interview with Mr. Torres.

The police talked to Mr. Torres the day after M.T’s interview. After being advised of his Miranda rights, Mr. Torres denied injuring N.B. but admitted N.B. fell and struck his head on a bedpost. Mr. Torres also admitted he did not want M.T. to talk to the police and had a private conversation with him to outline what M.T. would say. Mr. Torres claimed he told M.T. to tell the truth and say Mr. Torres did not cause the injuries to N.B. He did not offer any specific details on what M.T. was told.

Criminal Charges, Guilty Verdicts, Sentencing & the 5-Year No Contact Order.

The State charged Mr. Torres with one count of Witness Tampering under RCW 9A.72.120(l)(c). Although the case progressed toward trial, Mr. Torres ultimately pled guilty and entered an Alford plea on February 25. His case then proceeded directly to sentencing. During the sentencing colloquy, the court ultimately imposed a five-year no-contact order, prohibiting Mr. Torres from all contact with M.T. except by written mail. Mr. Torres also received a sentence of six months and $1,960 in court fines. Torres appealed.

For those who don’t know, a no contact order is also called a restraining order, and prohibits a person from being in physical or verbal contact with another person. The court must order the no contact agreement, and usually specifies how many feet, or yards, away the individuals must stay from one another. If broken the defendant may receive a fine, or jail time with a felony or misdemeanor charge.

COURT OF APPEALS’ DECISION AND REASONING.

The Court began with stating RCW 9.94A.505(9) authorizes a trial court to impose crime related prohibitions as sentencing conditions. A No-Contact Order is such a prohibition. The court further reasoned that conditions interfering with fundamental rights, such as the right to a parent-child relationship, must be “sensitively imposed” so they are “reasonably necessary to accomplish the essential needs of the State and public order.” A trial abuses its discretion if the trial court employs the wrong legal standard.

The Court further reasoned that here, at sentencing, the trial court imposed a five-year no-contact order, prohibiting almost all contact between Mr. Torres and his son. The Court reasoned that in so doing, the court failed to acknowledge Mr. Torres’s fundamental right to parent his child or explain why a five year prohibition on all personal contact was reasonably necessary to further the State’s interests. “This was error, even under the deferential abuse of discretion standard,” said the Court of Appeals. “While the trial court certainly can impose a no-contact order to advance the State’s fundamental interests in protecting children, it must do so in a nuanced manner that is sensitive to the changing needs and interests of the parent and child.”

“The State suggests we can infer the reasons for the court’s no-contact order from the record. We disagree. The record before us is scant. The trial judge did not explain why he decided to impose a no-contact order that was 10 times longer than what was requested by the State. We are unable to discern the court’s likely reasoning from the limited information presented. It is the trial court’s duty to balance the competing interests impacted by a no contact order.”

With that, the WA Court of Appeals remanded the case back to the trial court for further reconsideration – and instructions – on re-creating the no contact order.

“How to Create a No Contact Order.”

This portion of the Court opinion was very instructive to the lower court. For example, it was instructed that the trial court shall first address whether a no-contact order remains reasonably necessary in light of the State’s interests in protecting M.T. from harm. If it is, then the court shall endeavor to narrowly tailor the order, both in terms of scope and duration. When it comes to the order’s scope, the court shall consider less restrictive alternatives, such as supervised visitation, prior to restricting all personal contact between Mr. Torres and his child. In addition, the court’s order should recognize that “what is reasonably necessary to protect the State’s interests may change over time.” Accordingly, the court shall consider whether the scope of the no-contact order should change over time. The court shall also reconsider whether the ultimate length of the no-contact order remains appropriate. Finally, the trial court should keep in mind that a sentencing proceeding is not the ideal forum for addressing parenting issues.

My opinion? This was a great decision. I’m impressed that the Court of Appeals gave specific instructions on creating no contact orders in the future.

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.

Pretrial Custody Held Unlawful

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In Manuel v. Joliet, the U.S. Supreme Court held that a person’s pretrial detention for alleged crimes can violate the Fourth Amendment if the judge’s determination of probable cause was based solely on fabricated evidence.

BACKGROUND FACTS

During a traffic stop, police officers in Joliet, Illinois, searched the defendant Elijah Manuel and found a vitamin bottle containing pills. Suspecting the pills to be illegal drugs, the officers conducted a field test, which came back negative for any controlled substance. Still, they arrested Manuel and took him to the police station.

There, an evidence technician tested the pills and got the same negative result, but claimed in his report that one of the pills tested “positive for the probable presence of ecstasy.” An arresting officer also reported that, based on his “training and experience,” he “knew the pills to be ecstasy.” On the basis of those false statements, another officer filed a sworn complaint charging Manuel with unlawful possession of a controlled substance.

Pretrial Detention

Relying exclusively on that complaint, a county court judge found probable cause to detain Manuel pending trial. While Manuel was in jail, the Illinois police laboratory tested the seized pills and reported that they contained no controlled substances. But Manuel remained in custody, spending a total of 48 days in pretrial detention.

For those who don’t know, pretrial detention refers to detaining of an accused person in a criminal case before the trial has taken place, either because of a failure to post bail or due to denial of release under a pre-trial detention statute.

Civil Rights Lawsuit

At any rate, more than two years after his arrest, but less than two years after his criminal case was dismissed, Manuel filed a civil rights lawsuit pursuant to 42 U. S. C. §1983 against Joliet and several of its police officers (collectively, the City), alleging that his arrest and detention violated his Fourth Amendment rights.

The Federal District Court dismissed Manuel’s suit, holding, (1) that the applicable two-year statute of limitations barred his unlawful arrest claim, and, (2) that under binding legal precedent, pretrial detention following the start of legal process  could not give rise to a Fourth Amendment claim. Manuel appealed the dismissal of his unlawful detention claim. however, the Seventh Circuit Court of Appeals affirmed the ruling. Manuel appealed to the U.S. Supreme Court.

ANALYSIS & CONCLUSION

The U.S. Supreme Court decided that Mr. Manuel may indeed challenge his pretrial detention on Fourth Amendment grounds even though he was in custody. It explained that the Fourth Amendment prohibits government officials from detaining a person without probable cause. Furthermore, where legal process has gone forward, but has done nothing to satisfy the probable-cause requirement, it cannot extinguish a detainee’s Fourth Amendment claim.

“That was the case here,” said the Court. “Because the judge’s determination of probable cause was based solely on fabricated evidence, it did not expunge Manuel’s Fourth Amendment claim.” Consequently, Mr. Manuel proved a valid a Fourth Amendment claim when he sought relief for his arrest and pretrial detention.

Furthermore, the Court reasoned that the Seventh Circuit Court of Appeals should have determined the claim’s accrual date, unless it finds that the City has previously waived its timeliness argument. In doing so, the court should look to the common law of torts for guidance while also closely attending to the values and purposes of the constitutional right at issue.

With that, the U.S. Supreme Court reversed and remanded.

My opinion? Good decision. Pretrial release is a huge issue in criminal law.  In Washington, both CrR 3.2 and CrRLJ 3.2.1 govern the release of people accused of crimes. The purposes of the pretrial release decision include providing due process to those accused of crime, maintaining the integrity of the judicial process by securing defendants for trial, and protecting victims, witnesses and the community from threat, danger or interference.

The judge or judicial officer decides whether to release a defendant on personal recognizance or unsecured appearance bond, release a defendant on a condition or combination of conditions, temporarily detain a defendant, or detain a defendant according to procedures outlined in these Standards.

Ultimately, the law favors the release of defendants pending adjudication of charges. Deprivation of liberty pending trial is harsh and oppressive, subjects defendants to economic and psychological hardship, interferes with their ability to defend themselves, and, in many instances, deprives their families of support.

Here, Mr. Manuel was held in jail for 48 days when police lacked probable cause on any charges. That’s awful. Fortunately justice was served when his case was dismissed and that the U.S. Supreme Court upheld his lawsuit.

For more information on getting released from jail, please read my Legal Guide titled, Making Bail. And please contact my office for a free consultation if you, a friend or family member find themselves in jail.

Unlawful Property Seizure

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

BACKGROUND & FACTS

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

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

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

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

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

CONCLUSION & ANALYSIS.

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

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

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

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

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

State v. Froehrich: Unlawful Inventory Search

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In State v. Froehlich, the WA Court of Appeals Division II upheld the suppression of methampetamine found in a vehicle because the defendant’s car was unlawfully searched.

BACKGROUND

Ms. Froehlich was driving her car. She collided with a pickup truck waiting at a stop sign. After the collision, the car came to rest on the right shoulder of the highway. It was not obstructing traffic. A Washington State Patrol Trooper arrived at the scene. By this time, Froehlich was seated in the pickup truck that she had hit.

Ms. Froehlich eventually left the scene in an ambulance after talking with police at the scene. One trooper followed her to the hospital to do sobriety testing, and she was not arrested. However, the trooper at the scene of the accident decided to impound her car. At the scene, he performed an inventory search of the vehicle which also included the search of Froerich’s purse which she left inside the car. He found methamphetamine.

Ms. Froehrich was charged with Unlawful Possession of a Controlled Substance With Intent to Manufacture or Deliver. Froehlich filed a motion to suppress the methamphetamine, arguing in part that the Trooper had no reason to impound the car and failed to consider reasonable alternatives to impoundment. The trial court granted the motion, suppressed the evidence and ultimately dismissed the charges. The State appealed.

ANALYSIS

Ultimately, the Court of Appeals agreed with the lower court that the impoundment was not lawful and therefore the search was not lawful because (1) under the community caretaking exception, the State did not prove that the impounding officer considered whether Froehlich, her spouse, or her friends were available to remove the vehicle; and (2) even though there was statutory authority for impoundment, the State failed to prove that the impounding officer considered all reasonable alternatives.

The Court reasoned that both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit warrantless searches unless an exceptions to the warrant requirement applies. One exception to the warrant requirement is a non-investigatory, good faith inventory search of an impounded vehicle. Law enforcement may lawfully impound a vehicle for three reasons: (1) as evidence of a crime, (2) under the community caretaking function, or (3) when the driver has committed a traffic offense for which the legislature has expressly authorized impoundment. Even if one of these reasons exists, however, an officer may impound a vehicle only if there are no reasonable alternatives.

Here, the Trooper’s impoundment of Froehlich’s car was not lawful under the community caretaking function because there were reasonable alternatives to impoundment. Here, the Trooper never asked Froehlich about arranging to have someone else remove the car as an alternative to impoundment, and the State presented no evidence that the Trooper considered Froehlich’s ability to arrange for the car’s removal.

CONCLUSION

Because Richardson unlawfully impounded the vehicle, his seizure of methamphetamine from Froehlich’s purse was unlawful.

My opinion? Good decision. Very simple, straightforward and correct analysis. As usual, I’m extremely impressed with Division II’s handling of search and seizure issues, especially when it comes to vehicle searches. Here, it’s clear that police officers cannot go about impounding people’s vehicles and searching through belongings when reasonable legal alternatives exist.

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.

The “Drug House” Statute

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In State v. Menard, the WA Court of Appeals Division II reversed the lower court dismissal of charges of  Maintaining a Drug Dwelling under RCW 69.50.402.

BACKGROUND

The defendant Rodney Menard owned and lived at his home in Yakima. Menard lived at the home since he was 5 years old. He rented rooms to five individuals, occasionally received methamphetamine from tenants as rent payment, consumed twenty dollars’ worth of methamphetamine per day, and possessed drug pipes. Menard knew his tenants used methamphetamine, but denied knowledge of the use of his home for methamphetamine sales.

The Drug Enforcement Agency (DEA) received complaints of drug traffic from Menard’s home. On July 15, 2015, a DEA confidential informant purchased approximately a gram of methamphetamine at Menard’s home. On July 23, 2015, the DEA Task Force conducted a narcotics search. The front door was unlocked. Rodney Menard and thirteen other individuals were present when law enforcement officers entered the residence. In a basement bedroom, a lady rested on a small couch with a bag of methamphetamine next to her pillow.

Law enforcement officers spoke with Rodney Menard and other residents of the home. When asked if people who visit take drugs, Menard answered: “most people do.” Two renters informed the officers that 10 to 15 different people came daily to the house to use drugs. Menard claimed he unsuccessfully tried to end the heavy traffic at the house. Officers confiscated drug paraphernalia and 25.5 grams of drugs inside the home.

MOTION TO DISMISS

Menard was charged with Maintaining a Drug Dwelling under RCW 69.50.402. He filed a Knapstad motion under arguments that (1) his conduct is unlawful only if the drug activity constituted the residence’s major purpose, and (2) selling drugs was not the primary purpose of the residence. The trial court granted Menard’s motion to dismiss. The State appealed.

LAW & ANALYSIS

The Court of Appeals reasoned that under Washington law, a defendant may present a pretrial motion to dismiss a charge when the State lacks ability to prove all of the elements of the crime. RCW 69.50.402(1), known colloquially as the “Drug House” Statute, declares:

It is unlawful for any person: ( f) Knowingly to keep or maintain any … dwelling, building … or other structure or place, which is resorted to by persons using controlled substances in violation of this chapter for the purpose of using these substances, or which is used for keeping or selling them in violation of this chapter.

Here, Menard argued that he may be found guilty of maintaining a drug dwelling only if he maintains the home for the principal purpose of facilitating the use of controlled substances. However, the Court of Appeals disagreed.

The court reasoned that to convict under the “Drug House” Statute, the evidence must demonstrate more than a single isolated incident of illegal drug activity in order to prove that the defendant “maintains” the premises for keeping or selling a controlled substance.

The Court further reasoned that sporadic or isolated incidents of drug use are not enough to prove criminal conduct. Here, however, there was substantial evidence that people other than Menard used drugs in the house. Apparently, 10 to 15 people each day entered the home to use drugs. When police searched the house, fourteen people, some of whom admitted to use of methamphetamine, occupied the premises. One resident rested methamphetamine near her pillow. Officers found drug devices scattered throughout the home. When asked if people who visit take drugs, Menard answered: “most people do.”

With that, the Court of Appeals reversed the trial court’s dismissal of charges.

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.