Category Archives: felony

State v. Froehrich: Unlawful Inventory Search

Bellingham Defense Attorney, Community Caretaking, Constitutional Rights, Dismissal, Drug Offenses, Evidence, felony, Inventory Searches, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , ,

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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

Bellingham Defense Attorney, DEA, Drug House, Drug Offenses, Evidence, felony, Knapstad Motion, Methamphetamine, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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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.

State Senate Passes Bill Making Fourth DUI a Felony.

Bellingham, Bellingham Defense Attorney, Blood Test, Boating Under the Influence, Department of Licensing, Diminished Capacity, Drug Court, Drug Offenses, Drug Recognition Expert, DUI, felony, First Time Offender Waiver, I-502, Ignition Interlock Device, Implied Consent, Jail, Legislation, marijuana, misdemeanor, Persistent Offender, Prison, Sentencing, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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The WA State Senate has unanimously passed a bill that would make driving under the influence (DUI) a felony if the driver has three or more prior offenses on their criminal record within 10 years.

Senate Bill 5037 passed Thursday and now heads to the House, where it has stalled in previous years. The bill’s sponsors are as follows: Padden, Frockt, O’Ban, Darneille, Miloscia, Kuderer, Zeiger, Carlyle, Pearson, Conway, Rolfes, Palumbo, Angel, and Wellman.

Under the measure, a person who is charged with a fourth DUI, and has no other criminal history, would be subject to a standard sentencing range of 13 to 17 months in jail.

However, this bill allows first-time felony offenders to spend up to six months in jail, instead of nine, and finish out the rest of their sentence under supervision, such as attending Alcoholics Anonymous meetings and other programs.

My opinion? We shouldn’t be surprised. Over the past 20 years, Americans have seen a significant increase in the harsh penalties for intoxicated drivers. Perhaps this is necessary move given the thousands of lives lost to drunk drivers. Speaking as a criminal defense attorney, there’s serious question as to whether people commit these violations purely out of willful disregard for the law and for the safety of others or because of an untreated mental illness or alcohol addiction. Nevertheless, public outcry has led to increased sentences.

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 Right to Hope for Jury Nullification

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Ineffective Assistance, Jury Nullification, Sixth Amendment, Skagit County Criminal Defense, Uncategorized, United States Supreme Court, Whatcom County Criminal Defense, , ,

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Interesting article by Ilya Shapiro of the Cato Institute discusses whether jury nullification could aid a defendant who is facing deportation in lieu of receiving bad legal advice.

According to Ms. Shapiro, defendant Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported. The lawyer was wrong, unfortunately, because the conviction made Lee subject to deportation.

When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed with the law court’s ruling that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

For those who don’t know, jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.

According to Shapiro, Mr. Lee is now taking the matter at the United States Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief.

The Supreme Court must now protect the right to pursue Mr. Lee’s potentially risky trial strategy. Although it may not be wise for Mr. Lee to seek acquittal by jury nullification, he should also have the right to decide whether the risk is worth facing as against the certainty of deportation. According to Shapiro, “It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.” The Supreme Court hears argument in Lee v. United States on March 28, 2017.

My opinion? This is a very relevant, timely, progressive and news-worthy development. The new administration’s goals to deport criminal immigrants puts a lot of pressure on our courts to enforce these policies.

Ultimately, I predict an increase in post-conviction Motions to Withdraw guilty pleas based on Ineffective Assistance of Counsel under Padilla v. Kentucky, a 2010 United States Supreme Court case which held  that defense attorneys must inform their clients whether his plea carries a risk of deportation.

please  contact my office if you, family or friends are not U.S. citizens, yet face possible deportation for entering past guilty pleas which were ill-advised by defense counsel. Deportation is a terrible consequence for a prior attorney’s ineffective assistance of counsel.

Diminished Capacity Defense Denied

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Diminished Capacity, Expert Testimony, felony, Homicide & Manslaughter, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In a deeply divided decision of 5-4, = the WA Supreme Court held in State v. Clark that the defendant’s Diminished Capacity defense was properly excluded at trial, even though lay witnesses could testify that the defendant was “slow,” participated in special education, and received Social Security disability benefits.

The defendant Anthony Clark killed the victim, D.D., with a single gunshot to the back of his head. D.D.’s body was found in a garbage can behind the triplex apartment building where Clark lived. There were no eyewitnesses to the shooting other than Clark himself. The State theorized that Clark killed D.D. with premeditation in order to steal D.D.’s gun and cocaine. Clark contended the shooting was an accident. The primary disputed issue was thus Clark’s level of intent.

CHARGES

Clark was charged with premeditated first degree murder, first degree felony murder, first degree robbery, unlawful possession of a controlled substance with intent to deliver, and second degree unlawful possession of a firearm. Clark pleaded not guilty on all counts.

PROCEDURAL HISTORY

Before trial, the defense moved to suppress statements Clark made to police after the shooting, contending that he did not validly waive his Miranda rights before speaking to police. To support its motion, the defense offered an expert evaluation from a doctor. At the suppression hearing, Dr. Oneal testified that Clark scored in the bottom first to third percentile in standardized intelligence tests. The court found that Dr. Oneal was a credible witness but denied Clark’s motion to suppress.

The State then moved to exclude testimony about Clark’s “intellectual deficits” for trial purposes. However, Clark argued that the doctor’s testimony was admissible for three purposes: (1) to help the jury understand Clark’s affect during testimony, (2) to explain why Clark does not work, and (3) to contest the State’s evidence of intent.

The court granted the State’s motion in part and excluded the doctor’s expert testimony because, in light of the fact that Clark specifically disavowed any intention to argue diminished capacity, expert testimony on Clark’s intellectual deficits would be irrelevant and confusing to the jury. It did, however, allow for relevant observation testimony bearing on Clark’s intellectual deficits, including his participation in special education, his receipt of Social Security disability benefits, and “that people who knew him considered him slow or tended to discount his testimony.”

JURY TRIAL

At trial, the defense renewed its request to admit the doctor’s expert testimony; arguing that the testimony was necessary to rebut the State’s evidence of intent and to explain Clark’s affect when he testified. Nevertheless, the defense consistently maintained that it was not asserting diminished capacity. The court adhered to its ruling excluding the doctor’s testimony and reminded counsel that relevant observation testimony by lay witnesses was admissible.

The defense brought testimony that Clark had been in special education, had an individualized education plan, and received Social Security disability benefits. It relied on this evidence in its closing argument, emphasizing that Clark was “not your average 20 year old” and arguing that in light of Clark’s actual intellectual abilities, the State had not proved intent to commit murder.

Clark was convicted of premeditated first degree murder as charged, as well as all the other charged counts.

ISSUES ON APPEAL

  1. Did the trial court properly exclude expert testimony regarding Clark’s intellectual deficits?
  2. Was trial counsel ineffective for failing to object when the State informed prospective jurors that it was not seeking the death penalty?
  3. Did cumulative error deprive Clark of his right to a fair trial?

ANALYSIS

1. The Court Properly Excluded Expert Testimony of Diminished Capacity Evidence.

The Court gave background that under ER 702, expert testimony is admissible “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” It also reasoned that diminished capacity “allows a defendant to undermine a specific element of the offense, a culpable mental state, by showing that a given mental disorder had a specific effect by which his ability to entertain that mental state was diminished.” Also, the intent to assert diminished capacity must be declared before trial. Pretrial disclosure is required because when asserting diminished capacity, the defense must obtain a corroborating expert opinion and disclose that evidence to the prosecution pretrial, giving the State a reasonable opportunity to decide whether to obtain its own evaluation depending on the strength of the defense’s showing,” citing CrR 4.7(b).

Ultimately, the Court rejected Clark’s arguments that his doctor’s expert testimony should have been admitted for the purpose of rebutting the State’s evidence of intent.

“However, expert opinion testimony that a defendant has a mental disorder that impaired the defendant’s ability to form a culpable mental state is, by definition, evidence of diminished capacity. And where, as here, the defense does not plead diminished capacity, such testimony is properly excluded.”

Additionally, the Court rejected Clark’s arguments that his doctor’s testimony should have been admitted for the purpose of explaining Clark’s unusually flat affect while testifying:

“The jury had the ability to evaluate Clark’s affect to the same extent it had the ability to evaluate the affect of every testifying witness, and Clark has not shown that Dr. Oneal’s expert testimony would have been helpful for that purpose.”

2. Defense Counsel Was Not Ineffective for Failing to Object When the State Informed Prospective Jurors It Was Not Seeking the Death Penalty.

The Court gave background that in order to prevail on a claim of ineffective assistance of counsel, a defendant must show that trial counsel’s performance was “deficient,” and that, “but for counsel’s deficient performance, there is a ‘reasonable probability’ that the outcome would have been different.”

Here, the Court reasoned there was no indication that the jury disregarded its instructions or paid less attention to the evidence presented throughout Clark’s trial because it was told that the death penalty was not at issue.  Additionally, there was also no reason to believe that a contemporaneous objection by defense counsel would have reduced any potential for prejudice more than the court’s proper, written instructions did. “We thus hold that Clark has not carried his burden of showing prejudice and therefore has not established ineffective assistance of counsel.”

3. Cumulative Error Did Not Deprive Clark of His Right to a Fair Trial.

The Court reasoned Clark does not show any error, so the cumulative error doctrine does not apply.

CONCLUSION.

The Court concluded that Clark’s defense consisted of diminished capacity evidence. With that, the trial court properly excluded expert testimony from Clark’s doctor because Clark did not assert or plead diminished capacity or show that his doctor’s testimony was otherwise relevant. Moreover, the court properly allowed relevant observation testimony, which the defense relied on in its attempt to rebut the State’s evidence of intent. The Court affirmed his conviction.

THE DISSENT.

The dissenting judges reasoned that the trial court admitted certain lay observation testimony supporting the defense, but excluded the more neutral and more persuasive medical expert testimony supporting the same defense theory.  It also reasoned that the majority judges wrongfully equated all expert testimony about intellectual deficits with a diminished capacity defense. Additionally, the dissenting judges reasoned that by excluding defense evidence that could rebut the State’s evidence of intent, the trial court violated Clark’s constitutional right to present a defense. Finally, the dissenters reasoned that the exclusion of expert testimony on Clark’s mild mental retardation was not harmless error:

“To rebut the State’s evidence that he was a cold, calculated killer, Clark offered lay and expert testimony about how he was slow and did not process information the way other people his age did. But the trial court excluded most of it. It barred all testimony from Dr. Oneal about Clark’s substantial intellectual deficits. 6 Dr. Oneal would have testified, based on his personal testing and evaluation of Clark, that Clark was born prematurely and with significant developmental delays, was highly suggestible and therefore prone to change his story when pressured, and had a very low IQ score indicating that he had extremely poor perceptional reasoning, working memory, and verbal comprehension skills compared to others his age.”

With that, the dissenting judges held that the trial court improperly excluded evidence of Clark’s intellectual deficits in violation of the Evidence Rules and Clark’s constitutional right to present a defense; and that this error was not harmless.

My opinion? Diminished Capacity is a worthwhile – and difficult – defense to bring forward. Prosecutors consistently try to preclude defense counsel from bringing the defense. Here, it’s too difficult to determine why defense counsel did not assert the defense from the beginning. We’ll never know.

Unfortunately for Mr. Clark, it the majority court believed Mr. Clark did not properly assert the defense. Instead, it allowed Clark to get some evidence of his mental deficits through law witnesses. This is lawful, albeit not enough. A defendant can assert a roundabout defense of diminished capacity through law witness observations. What’s problematic, however, is that law witnesses won’t bring the requisite level of insight that experts bring.

Interesting opinion.

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.

Deported After Conviction

Alford Plea, felony, Immigration, Ineffective Assistance, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Manajares, The WA Court of Appeals Division III upheld the defendant’s 2002 conviction because at the time it was unforeseeable that the plea would result in deportation.

In December 2002, defendant Jose Manajares entered an Alford plea to one count of Unlawful Imprisonment, a Class C Felony. Before accepting the plea, the court asked Mr. Manajares if he understood that his “plea of guilty to this count is grounds for deportation from the United States, … exclusion from admission to the United States and denial of naturalization,” and he answered “Yes.” The court accepted the plea and sentenced Mr. Manajares.

Shortly after he entered the plea, Mr. Manajares was removed from the United States by the United States Immigration and Naturalization Service.

Almost 10 years after his 2002 conviction, Mr. Manajares filed a CrR 7.8 motion to vacate his Alford plea. He argued he received ineffective assistance of counsel because Manjares’s defense attorney failed to advise him that his conviction could result in deportation.

The Court reasoned that when determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.”

PADILLA V. KENTUCKY.

In Padilla, the United States Supreme Court recognized that immigration law can be complex,” and that “some members of the bar who represent clients facing criminal charges … may not be well versed in it.  Because “there will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain,” the Court announced the following standard for assessing a criminal defense lawyer’s duty:

“When the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, … the duty to give correct advice is equally clear.”

Therefore, the Court of Appeals reasoned whether Mr. Manajares’s ineffective assistance of counsel claim depended on whether truly clear adverse immigration consequences would follow from his 2002 plea that defense counsel failed to apprehend and explain.

IMMIGRATION & NATIONALITY ACT.

The Court also reviewed the Immigration and Nationality Act, “which holds that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude ( other than a purely political offense) … is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Here, the court reasoned it was unclear to both Mr. Manjares’s immigration attorney and his appellate attorney whether a conviction for unlawful imprisonment was an aggravated felony or a crime of moral turpitude which automatically triggers deportation.

Additionally, the court reasoned it is not automatically deficient performance for a lawyer to permit a client to enter an Alford plea. For all of these reasons, the Court decided there was ultimately no deficient performance on the part of defense counsel.

Mr. De Long’s review with Mr. Manajares of the general statutory deportation warning was therefore competent representation.

My opinion? In 2010, the U.S. Supreme Court’s Padilla v. Kentucky set the “bright line rule” that criminal defense attorneys must warn non-citizen clients of the risk of deportation if the defendant is considering a guilty plea. Employing Strickland v. Washington‘s test for evaluating whether legal counsel was “ineffective,” the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty pleas carry a risk of removal from the United States, If counsel fails to issue a warning, he or she violates the defendant’s Sixth Amendment right to effective assistance of counsel.

Here, Padilla’s 2010 guidelines rules were not in effect because the defendant entered his plea in 2002. Therefore, defense counsel was no deficient in his performance.

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.

Misconduct at Closing

Bellingham Defense Attorney, Constitutional Rights, Evidence, Expert Testimony, felony, Jury Trial, Juvenile, Prosecutorial Misconduct, Rape, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In In re Personal Restraint of Phelps, the WA Court of Appeals Div. II held (1) expert testimony is required if the State intends to rely on the grooming process to prove and argue  its case, (2) the Prosecutor improperly argued facts not in evidence about sexual grooming, and (3) this error resulted in prejudice to the defendant that requires a reversal of his convictions.

BACKGROUND

On June 8, 2012, Defendant Todd Phelps went to  trial on his charges of third degree rape and second degree sexual misconduct with a minor. In February 2011, the victim AA was a minor who began playing softball on her high school team. Mr. Phelps was one of her coaches. Apparently, Mr. Phelps groomed AA into having sexual relations with him.

At trial, the State did not present any expert or lay testimony about the grooming process.

In closing argument, however, the prosecutor discussed some of the topics that he questioned the jurors about during jury selection, including the grooming process:

“Then we talked about grooming. We talked about the process of grooming. And some people came up with examples of how someone who is grooming is going to be nice. They are going to try to get the trust of someone. They are going to try and isolate that person so that they can do an act against this person who is being groomed. And it’s not just the person who is being groomed, but it’s other people that are around as well that are being groomed.”

The prosecutor referred to the concept of grooming throughout his argument. For example, after talking about the alleged physical contact that occurred before the rape, the prosecutor argued,

“What is all this stuff that’s going on? What is all this physical contact between a coach and a student athlete? It’s grooming; it’s okay, every time I touch you, it’s okay, it’s okay. Eventually, it becomes the norm. The grooming isn’t in the open, folks. When people groom, they don’t do it so everybody can see. That’s not the way it works. It wouldn’t be called grooming. It would be called a crime because he’d be caught all the time.”

The prosecutor further discussed how the grooming process took place over time and that, as part of it, Phelps told AA stories about how his wife refused to sleep in the same bed with him, how his wife had made out with another man, and other statements about his wife that were attempts to make AA sympathetic to him. The prosecutor then commented about Phelps’s sexual comments to AA and his physical contact with her, stating that “these are the things that are going on that she’s being told and groomed with throughout their contacts.” After discussing MM’s father’s testimony about Phelps bragging about his ability to control AA’s emotions, the prosecutor argued,

“So let me talk about grooming again. At this point, point of the rape, [AA] is pretty much isolated from her entire family until she eventually is allowed to move with her aunt. Remember the stories about her family, her grandma, her cousin, her aunt. She’s told these sex stories by the defendant. She’s told to break up with her boyfriend, don’t talk to your counselor. The defendant is meeting with her in private with other students, but no adults around. He has made her feel important throughout this entire incident. She felt he was the only one she could talk to.”

These types of comments from the Prosecutor – and many others about grooming – were repeated and emphasized throughout closing argument.

The jury found Phelps guilty of second degree sexual misconduct with a minor and third degree rape. Phelps appealed on the issue of whether the prosecutor committed misconduct by introducing the concept of grooming in closing argument without any evidentiary support or foundation; i.e., arguing that the prosecutor argued facts outside the record.

THE COURT’S ANALYSIS

The court reasoned that the 6th Amendment to the United States Constitution guarantees a defendant a fair, but not an error-free, trial. The burden to establish prosecutorial misconduct is on the defendant, who must show that the prosecuting attorney’s conduct was both improper and prejudicial. Prosecutorial misconduct is grounds for reversal only when there is a substantial likelihood that the improper conduct affected the jury.

Expert Testimony of Grooming.

The Court said expert testimony is required if the State intends to rely on the grooming process to prove and argue its case. Although the discussion of grooming in jury selection demonstrates that some of the jurors in this case had some general knowledge of grooming, this does not demonstrate that the jurors had the nuanced understanding of the grooming process that would enable them to understand its effect on things such as AA’s failure to report and how the grooming process may be used to influence others in order to increase the defendant’s credibility or undermine the victim’s credibility. Furthermore, the Court reasoned that the psychological complexities in understanding and evaluating the grooming process demand expert testimony to aid the jury.

Ultimately, the Court reasoned that because the prosecutor’s grooming argument encompassed issues that are beyond the jury’s common understanding, Phelps is correct that the prosecutor should have presented expert testimony on this matter if the State wished to rely on these concepts in closing argument.

Arguing Facts Not in Evidence.

The Court held that the Prosecutor’s use of the grooming concept in closing argument without first presenting testimony about the grooming process was misconduct.  There was no evidence of any kind before the jury explaining the grooming process, the potential purposes of grooming beyond achieving a sexual relationship with AA, or the effects of grooming on those around AA. Consequently, the State was required to present expert testimony on this aspect of the grooming process because these concepts were not within the common understanding of the jury. For that reason, the prosecutor was arguing facts that were not in evidence.

Flagrant, Ill-Intentioned & Incurable Prejudice.

The Court reasoned that the Prosecutor’s argument, without any evidentiary support, was also clearly prejudicial because it touched on credibility determinations that were key to this case given the circumstantial nature of the case and the lack of direct evidence of the criminal acts. The prosecutor’s argument focused on how Phelps’s grooming behaviors affected AA’s behavior and how those around AA perceived AA. It also was intended to rebut Phelps’s claims that his contact with AA was merely an innocent attempt to help a troubled young woman. Thus, this argument had a strong relationship to AA’s and Phelps’s credibility and potentially influenced the jury’s credibility determinations.

Finally, the Court reasoned that any resulting prejudice from the Prosecutor’s statements at closing argument could not have been cured by a jury instruction:

“We hold that Phelps has shown that the prejudice could not have been cured by an instruction. The repeated and pervasive use of the grooming concept makes it less likely that the jury followed this instruction, particularly when the grooming evidence was relevant to the core credibility issues in a case with no direct evidence of the actual crimes. Thus, Phelps has established prosecutorial misconduct.”

With that the Court reversed Phelps’ conviction.

My opinion? Good decision. As a practice, expert witnesses are required to testify about issues which are beyond the common understanding of jurors. The topic of grooming sexual assault victims certainly requires an expert. Period.

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

 

Overbroad Parolee Searches

Bellingham Defense Attorney, Constitutional Rights, Department of Corrections, Drug Offenses, Evidence, felony, Firearm, Nexus, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Livingston, the WA Court of Appeals Division II held that evidence collected during a warrantless search of the defendant’s vehicle following the defendant’s arrest on a D.O.C. warrant is only admissible if there is a nexus between the community custody violation and the searched property.

On May 29, 2014, DOC Officer Thomas Grabski observed a person, later identified as Darian Livingston, who he recognized as having an outstanding DOC arrest warrant; Livingston was washing a vehicle alone at a car wash. Officer Grabski called for assistance, and two more officers arrived to assist him.

When the additional officers arrived, Livingston was talking with a person on a motorcycle. The person on the motorcycle drove away when the officers approached. Livingston was the only person near the vehicle. After confirming Livingston’s identity and the warrant, the officers arrested Livingston.

The officers then asked Livingston about the vehicle he had been washing. He said it belonged to his girlfriend who had gone to a nearby store, but he later admitted that his girlfriend was in Seattle and could not pick up the vehicle.

Livingston also admitted that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first saw the officers. At the time of his arrest, Livingston was on active DOC probation. The DOC warrant issued in his name said there was “reasonable cause to believe Mr. Livingston] violated a condition of community custody.

DOC Officers Grabski and Joshua Boyd conducted a “compliance search” of the vehicle. When they conducted the search of the vehicle, the officers did not have any information about the nature of the violation that triggered the issuance of the DOC warrant.

Inside the vehicle, the officers found mail and other documents with Livingston’s name on them, a single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, the officers found a black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying a baggie of cocaine on his person.

The State charged Livingston with first degree unlawful possession of a firearm (count I), unlawful possession of a controlled substance with intent to deliver (cocaine) (count II), bail jumping (count III), unlawful possession of a controlled substance (oxycodone) (count IV), and unlawful possession of a controlled substance (hydrocodone/dihydrocodeinone) (count V). Before trial, Livingston moved to suppress the evidence discovered during the vehicle search. The judge denied Livingston’s motion. He appealed.

Livingston argued that the trial court erred in deciding that the vehicle search was lawful under RCW 9.94A.631(1) because the officers had a reasonable belief that he had violated a community custody condition or sentencing requirement. Instead, he asked the Court of Appeals to follow State v. Jardinez and hold that to justify such a search, the property searched must relate to the violation that the community custody officer (CCO) believed had occurred.

First, the Court of Appeals reasoned that both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches unless an exception exists. Washington law recognizes, however, that probationers and parolees have a diminished right of privacy that permits warrantless searches based on reasonable cause to believe that a violation of probation has occurred. This reduced expectation of privacy for parolees is recognized in RCW 9.94A.631(1), which states,

If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Second, the Court reasoned that pursuant to State v. Jardinez, there must be a nexus between the violation and the searched property. In Jardinez, the defendant’s parole officer searched his iPhone for no reason and found evidence linking Mr. Jardinez to criminal behavior. He was charged and convicted. On his appeal, the Court of Appeals examined the following official comment from the Sentencing Guidelines Commission (Commission) on RCW 9.94A.631(1):

“The Commission intends that [CCOs] exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the [CCO] upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the [CCO] believes to have occurred.”

Noting that Washington courts “have repeatedly relied on the Commission’s comments as indicia of the legislature’s intent,” Division Three concluded that the italicized portion of this comment “demands a nexus between the searched property and the alleged crime.” Following Jardinez, the Court of Appeals held that the trial court erred when it failed to consider whether there was a nexus between the violation and the searched property.

With that, the Court affirmed Mr. Livingston’s bail jumping conviction, count III, and his unlawful possession of a controlled substance conviction charged as count II. However, the court reversed the order denying Livingston’s motion to suppress the evidence discovered in the vehicle search and remanded Livingston’s case back to the trial court for further proceedings consistent with this opinion.

My opinion? Good decision. I’ve discussed Jardinez in another post, and found that opinion compelling as well. Excellent use of prior precedents and stare decisis.

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.

Promoting Prostitution

Bellingham Defense Attorney, Constitutional Rights, Double Jeopardy, felony, Promoting Prostitution, Rule of Lenity, Skagit County Criminal Defense, Unit of Prosecution, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Barbee, the WA Supreme Court held that a pimp can be convicted on multiple counts of promoting prostitution when multiple prostitutes are involved.

Defendant Shacon Barbee was a pimp that made money from prostitutes working under his supervision. Three young women that Barbee “supervised” during 2010 were SE, BK, and CW.

S.E.

SE met Mr. Barbee when she was 13 and began working for him as a prostitute when she was 16. Along with posting ads on websites such as Backpage.com, SE would also work “the track” (a slang term for working on the streets) in popular Seattle-area prostitution locations including Aurora Avenue and Pacific Highway South. SE thought that Barbee cared about her and that they would spend their lives together. She was expected to make $1,000 a day or stay up at night until she met that quota.

All of her earnings went to Barbee, who required SE to recruit other girls or young women to work for him as prostitutes. SE would peruse websites like MySpace or Facebook, looking for attractive girls who might be interested in “escorting.” During 2010, two of the women she recruited on Barbee’s behalf were two 18-year-olds, BK and CW.

B.K.

BK soon began working as a prostitute for Barbee, initially working out of a motel room and later moving to “the track.”  After BK was arrested and then released from jail, she went to her parents’ house, intending to stop working for Barbee. A few months later, Barbee texted BK and convinced her to come to his apartment in Seattle. BK soon began living in the apartment and worldng for Barbee again. She testified at trial that Barbee took the keys to her car and refused to return them, would not allow her to leave the apartment during the day, and allowed her to go shopping or visit her daughter only if he accompanied her. At some point in late 2010, BK left and stopped working for Barbee permanently.

C.W.

Eighteen-year-old CW also worked for Barbee during 2010, but for a comparatively short time. She was living in Bellingham and working at a nursing home when SE began communicating with her via MySpace in early May. Excited about the idea of becoming more independent, CW packed her bags, borrowed a friend’s car, and moved to Seattle to meet SEat a Motel6 on Pacific Highway South. Once she arrived, CW was told that she would be worldng for Barbee as an escort, that all of her money would go to him, and that he would provide her with clothes, jewelry, and a place to live.

A few weeks later, CW became disillusioned and texted Barbee that she was quitting. She left and never had contact with Barbee again.

THE ARREST & THE VERDICT

That December, SE arranged online to meet a client for an out-call at the Hampton Inn in Kent. Barbee drove SE to the motel and waited for her while she went inside. The client she had arranged to meet turned out to be an undercover officer. When SE arrived and agreed to have sex with the detective, she was arrested. After a short car chase, police officers arrested Barbee as well.

The State charged Barbee with two counts of promoting sexual abuse of a minor (SE), one count of first degree promoting prostitution (BK), one count of second degree promoting prostitution (CW), one count of leading organized crime, two counts of first degree theft from the Social Security Administration, and one count of second degree theft from the Department of Social and Health Services (DSHS).

The jury found Barbee guilty on all counts, except that they found him guilty of the lesser included offense of second degree promoting prostitution of BK.

THE APPEAL

Barbee claims that the two counts of promoting prostitution of BK and CW constitute a single unit of prosecution, or that he committed a single “enterprise” of promoting prostitution that involved two prostitutes. On Appeal, he argues that his two convictions for promoting prostitution of different women as part of the same enterprise over the same period of time” encompassed a single unit of prosecution in violation of the double jeopardy prohibition clauses of our federal and state constitutions.

THE ISSUE

The WA Supreme Court addressed whether Barbee’s two counts of second degree promoting prostitution constitute a single unit of prosecution. Here, it appears so.

THE CONCLUSION

The Court decided that yes, Barbee’s two counts of Second Degree Promoting Prostitution constituted two distinct units of prosecution.

THE COURT’S ANALYSIS OF “UNITS OF PROSECUTION”

The WA Supreme Court reasoned that Double Jeopardy is violated when a person is convicted multiple times for the same offense. When the convictions are under the same statute, the court must ask what ‘”unit of prosecution”‘ the legislature intended as the punishable act under the specific criminal statute.

The Court further reasoned that both constitutions protect a defendant from being convicted more than once under the same statute if the defendant commits only one unit of the crime. Thus, while a unit of prosecution inquiry is “one of constitutional magnitude on double jeopardy grounds, the issue ultimately revolves around a question of statutory interpretation and legislative intent.”

Furthermore, the court reasoned that when engaging in statutory interpretation, its goal is to ascertain and carry out the intent of the legislature: “To determine legislative intent and thus define the proper unit of prosecution, we first look to the statute’s plain meaning. If the plain meaning of the statute is ambiguous, we may also determine legislative intent by reviewing legislative history.”

Once we have defined the proper unit of prosecution, we perform a factual analysis to ascertain whether the facts in a particular case reveal that more than one “unit” is present.

THE COURT’S REASONING ON “UNITS OF PROSECUTION” IN ‘PROMOTING PROSTITUTION’ CASES

The Court reasoned that the plain Language of the Promoting Prostitution statute unambiguously authorizes multiple convictions when an individual promotes prostitution of multiple people:

“While the ‘evil’ of promoting prostitution may be the same regardless of how many prostitutes are “promoted,” it does not follow that a person is ‘equally guilty’ whether he pimps one prostitute or several. Rather, in statutes that involve crimes against persons, that guilt compounds in magnitude depending on the number of lives that are affected.”

Ultimately, two “units” were clearly proper here: CW and BK are two distinct “persons” who were both exploited by Barbee.

CONCLUSION

In sum, the WA Supreme Court held that the legislature, by use of the language “a person,” unambiguously authorized a unit of prosecution for each person promoted. “When a defendant promotes prostitution of more than one individual, he or she may be prosecuted for more than one count.” Accordingly, the Court affirmed the Court of Appeals’ decision that Barbee’s convictions for promoting prostitution of BK and CW did not violate prohibitions on double jeopardy.

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.

Strict Liability Offenses

Bellingham Defense Attorney, Blood Test, DUI, felony, Legislation, Skagit County Criminal Defense, Strict Liability, Strict Liability Offenses, Vehicular Assault, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Burch, Division II of the WA Court of Appeals held that in order to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it merely proves that the driver was under the influence of alcohol or drugs while driving that vehicle.

In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones and a severe ear laceration. Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants.

They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident. The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others.

The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. However, the jury was unable to agree as to whether she had driven with disregard for the safety of others. Burch appealed her convictions.

The Court of Appeals addressed the sole issue of whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs.

Here, the Court of Appeals disagreed with Burch’s arguments that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs.

The Court also reasoned, “Offenses that criminalize a broad range of apparently innocent behavior are less likely to be strict liability offenses.  However, vehicular homicide committed by a driver under the influence encompasses little, if any, seemingly innocent conduct:

“Driving under the influence of alcohol or drugs is itself a serious criminal offense. RCW 46.61.502(1). Therefore, operating a motor vehicle under the influence is rarely, if ever, innocent behavior. Because vehicular homicide while under the influence of intoxicating liquor or drugs requires the State to prove the facts of both impairment and operation of a motor vehicle, the crime necessarily encompasses primarily or solely criminal behavior.”

For those who don’t know, a “strict liability offense” strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.  In criminal law, possession crimes and statutory rape are both examples of strict liability offences.

With that, the Court of Appeals held that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs: “These considerations, along with the analysis of relevant statutory language above, lead to a single conclusion: the trial court did not err by instructing the jury that it could convict Burch without finding ordinary negligence or any other culpable mental state.”

The Court also held that the legislature intended vehicular assault by driving under the influence to be a strict liability offense, and that the trial court did not err by instructing the jury that it could convict without finding that Burch acted with ordinary negligence.

My opinion? Vehicular Homicide and Vehicular Assault are particularly difficult to mount a legal defense against given the “strict liability” facets of the law. The prosecution does not need to prove intent as long as the offender had drugs or alcohol in their system at the time of the offense. Period.

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