Category Archives: felony

State v. Rooney: Unlawful Search of Bedroom, Yet Valid Frisk of Pants.

Bellingham Defense Attorney, Common Authority Rule, Constitutional Rights, Drug Offenses, Evidence, felony, Firearm, law enforcement, Search and Seizure, Terry Stop, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

What to Know About Unlawful Search and Seizure

In State v. Rooney, the WA Court of Appeals Division II gave interesting results on a multi-layered search & seizure case. First, an officer who lawfully entered a parolee’s room in order to arrest him, properly conducted a Terry frisk of a roommate’s pair of pants before giving them to the roommate. The frisk was justified by the presence of several swords, an axe and multiple knives in the room. However, the officer’s search of a room over the objection of the roommate, who was not on community custody, violated the roommate’s Constitutional rights.

Alexandria White, who was serving a term of community custody, began living with the defendant, Norman Rooney, in his home in December 2013 shortly after her release from prison. Her parole officer Chris Napolitano supervised White’s community custody. Napolitano knew that Rooney and White had lived together like a married couple and they had always lived in the same room together.

After White moved in with Rooney again that December, Napolitano discovered White had changed her address without notifying him, which violated her community custody conditions.

Napolitano obtained an arrest warrant for White and, with a team of law enforcement officers, went to Rooney’s house to arrest her on December 30, 2013. As Napolitano walked into the bedroom, White was standing in the bedroom with Rooney, who appeared to be asleep in bed. Napolitano observed swords and axes hanging on the bedroom wall and a couple of knives laying on the shelves. He observed additional weapons on Rooney’s nightstand. Napolitano advised White that by failing to report her new address and not being available for contact she had violated her community custody. White acknowledged that Napolitano would arrest her for the violation.

After Napolitano arrested White and placed her in the living room, Napolitano told White that he was going to search the bedroom. White responded that she lived in the living room, not the bedroom, but Napolitano did not see any sleeping arrangements or anything that appeared to be White’s belongings in the living room. Napolitano ordered Rooney to leave the bedroom so the officers could search it. Rooney objected to the search because he was not currently on community custody, but he began to physically comply.

Rooney, who was dressed in what appeared to be boxer shorts, asked to put on pants. Napolitano replied that he would have to search the pants “for safety reasons” before Rooney could put them on and leave the room. Given the other weapons in the room, Napolitano was concerned that Rooney might have a weapon in the pants. Rooney grabbed a pair of pants, and when Napolitano took hold of the pants, he immediately felt a firearm.

After Rooney was arrested and placed in the living room, Napolitano and Harvey searched the bedroom and found methamphetamine, heroin, and clonazepam. The State charged Rooney with three counts of Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam) and one count of First Degree Unlawful Possession of a Firearm. Rooney moved to suppress evidence of the controlled substances and the firearm. The trial court denied Rooney’s motion and found him guilty as charged at a bench trial. On appeal, Rooney argues that the trial court erred when it denied his motion to suppress.

The Court of Appeals reasoned that warrantless searches and seizures are generally unreasonable and violate the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution. However, consent is one well-recognized exception to this rule. The State bears the burden of proving by clear and convincing evidence that a warrantless search falls into one of the exceptions to the warrant requirement.

The Court further reasoned that, in searches involving a cohabitant who consents to a warrantless search, Washington has adopted the Common Authority Rule; which says that a cohabitant may grant consent to search a residential area that each cohabitant has equal authority to control. This rule is based on the Washington Constitution’s guarantee of each individual’s expectation of privacy and the theory that a person assumes risk that his or her cohabitant may allow “outsiders” into a shared space.

Finally, the Court reasoned that the consent of only one person with common authority over the place to be searched when multiple cohabitants are present is NOT sufficient to conduct a lawful search of shared space.  “We have never held that a cohabitant with common authority can give consent that is binding upon another cohabitant with equal or greater control over the premises when the non-consenting cohabitant is actually present on the premises,” said the Court. “When a cohabitant who has equal or greater authority to control the premises is present, his consent must be obtained and the consent of another of equal or lesser authority is ineffective against the non-consenting cohabitant.”

With that, the court held that under application of the common authority rule, because Rooney was present and objected, the officers’ search of Rooney’s room was unlawful. The fact that White was serving a community custody term does not undermine Rooney’s right to object to a warrantless search of his bedroom. Therefore, the officers’ warrantless search of Rooney’s bedroom was unlawful as to Rooney, and the trial court erred in denying Rooney’s motion to suppress the methamphetamine, heroin, and clonazepam evidence found during the unlawful search.

Regarding the frisk of Rooney’s pants, the Court of Appeals reached an entirely different decision. They decided the trial court did not error in denying Rooney’s motion to suppress evidence of the firearm found in Rooney’s pants. The Court reasoned that an officer may conduct a non-consensual protective Terry frisk for weapons if the officer can articulate specific facts that create an objectively reasonable belief that the person is armed and dangerous. The officer need not be certain that the person is armed before he or she conducts a protective frisk.

Here, Napolitano and other law enforcement officers saw “several swords, an axe, and multiple knives” in Rooney’s bedroom. Because he was aware of the number of weapons, Napolitano was concerned for his safety. Also, Rooney’s behavior following Napolitano’s warning that the pants would be searched, together with Napolitano’s observation of the weapons in plain view in his bedroom, gave Napolitano articulable suspicion that the pants Rooney wanted to wear might have contained a weapon.

The court concluded that the officers’ warrantless search of Rooney’s bedroom over his objection was unlawful, and therefore, the evidence of the controlled substances must be suppressed. But Napolitano’s frisk of Rooney’s pants was lawful and based on reasonable suspicion. Therefore, the court reversed Rooney’s three convictions for Unlawful Possession of a Controlled Substance (methamphetamine, heroin, and clonazepam), and affirmed his conviction for First Degree Unlawful Possession of a Firearm.

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. Bentura-Ozuna: Letter Found in Jail Cell Supports Conviction for Witness Intimidation

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Intimidating a Witness, Jail, Jury Trial, Knapstad Motion, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Amazon.com: Jail Mail: Appstore for Android

In State v. Bentura-Ozuna, the WA Supreme Court held that the defendant committed the crime of Intimidating a Witness  under RCW 9A.72.110(2) when a letter found in his jail cell directed a threat to a former witness because of the witness’s role in an official proceeding. The statute defines a “threat” to mean “to communicate, directly or indirectly, the intent to harm another.”

Here, In June 2010, Ozuna was incarcerated in the Yakima County Department of Corrections (Yakima County Jail). Ozuna was awaiting sentencing for a prior conviction. The conduct underlying that conviction involved Augustine Jaime Avalos, a member of the same gang as Ozuna. Avalos had testified against Ozuna in Ozuna’s underlying trial and was also incarcerated in the Yakima County Jail.

On June 8, when Ozuna was moved from one prison cell to another, a corrections officer found two unstamped, unsealed letters in his possession. The deputy opened the letters. One letter was meaningless to this issue. The other letter said the following:

Ey homie, I just got your (unreadable). Well it was a blessing to hear from you. It put’s a smile on my face to know that your ready to ride for me. . .. As you already know, I agreed to a plea deal for 10 years 9 months cause of a pussy that don’t know how to ride or Die. He would rather break weak than to honor our sacred code of silence. He is now marked a rat and a piece of shit in my book He has sealed his fate and now it’s just a matter of time. He rode with me and was given my trust and he decided to dishonor that privaledge …. [A ]11 I can say for that fool is, you know what time it is. You guys let him live in luxery for way to long already. . . How can you live with a rata like that and still be able to rest in peace in that puto’s presence? I hope and pray for satisfaction before I leave this building and may that fool suffer and Die in his rat hole. Fucken snitch bitch rat! … That puto took 10 years of my life and a fucken leva from my barrio, “my big homie” “Gorge” is living in the same house as him …. Gorge could of did something but just decided to let that puta slide and live under the same roof with him …. Tell that fool he’s a piece of shit just like him. Let’em know that this is Campana Gang! He put’s the crack in our bell. No loyalty, no honor, no heart! … Tell’ em he’s as good as dead to me.

Let that fool feel the wrath and let’ em know the rata that he is and tell’em that I siad that bad things come to those that snitch. May he rest in piss … So now you know what I want primo, don’t hesitate vato. Take action, reep the rewards later. Don’t think, just act. … Hit me up later after the shit get’s handled. Do it on the 25 cause that’s when I have court, and I want to have a smile on my face that day knowing that … fool’s getting a lil taste of what’s coming to him. The 25 is the day I get sentenced. Good looking out Primo, don’t let me down fucker! … Tell’em that Vanessa’s gonna be the one to set him up for us, mark my words! Show him how set ups are done. There just waiting for him to get out. … Lol. … Satisfaction will be mine! Let’ em know that he fucked up.

On July 9, Avalos was assaulted by inmate David Soto while in a courthouse holding room. Avalos received stiches at the hospital for his injuries. The inmates who were present when Avalos was injured were not cooperative. Ozuna was not present during the assault.

At trial, the Prosecution produced ample testimony confirming that there was a threat to another person in the letter, however,  no evidence established that the letter was delivered to anyone before the officer confiscated it.

The State also produced expert testimony about gang culture from a Sunnyside Police Department officer who worked in the Yakima area and was knowledgeable about the local gangs, as well as the individuals at issue here.

Similarly, two other officers from the Yakima County Jail discussed the status of being a “shot caller” or “tank boss,” meaning someone who has elevated decision-making authority within a gang or prison. One officer testified that Ozuna was a “shot caller” in the Yakima County Jail.

Before trial, Ozuna argued a Knapstad motion to Dismiss the charge for lack of evidence. Defense counsel argued that “directing a threat at somebody means not keeping it to yourself; it means directing it to somebody, not necessarily … to the intended victim, but to somebody. The Court denied the Knapstad motion to dismiss.

The trial proceeded, and the jury returned a verdict convicting Ozuna of Intimidating a Former Witness. The trial court entered judgment and imposed an exceptional sentence of 10 years based on the jury’s finding of gang-related aggravating factors. Ozuna appealed.

The WA Supreme Court reasoned that a communication must be transmitted and received. However, a person may “direct a threat” under the intimidation of a former witness without that threat being communicated to the threat’s target. “The threat may be transmitted to a third party.” Consequently, there was sufficient evidence at trial for a rational jury to find that Ozuna directed a threat to a third party or to Avalos himself.

The court further reasoned that Ozuna had the state of mind, motivation, and opportunity to direct a threat regarding Avalos. Avalos had been a longtime gang member with Ozuna, and Avalos testified against Ozuna. They were incarcerated in the same prison. Ozuna had gang allies in the prison. Avalos had enemies. Furthermore, testimony from witnesses established the gang follows a strict “no snitch” code, enforced by violent retaliation.

Here, Ozuna’s confiscated letter reveals his state of mind. It said, for example, “Let that fool feel the wrath and let’ em know the rata that he is and tell him that I siad that bad things come to those that snitch. May he rest in piss.” Additionally, the jury could consider the timing of Avalos’s assault by a member of Ozuna’s gang, David Soto. “The evidence is sufficient insofar as it establishes Ozuna’s state of mind, motivation, and opportunity to direct a threat regarding Avalos.”

The WA Supreme Court affirmed Ozuna’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.

State v. Cayetano-James: Prohibiting Phone Call Testimony

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jury Trial, Prosecutorial Misconduct, Sex Crimes, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Notaries Earn Extra Income Serving As A Remote Testimony Witness | NNA

In State v. Cayetano-James, the WA Court of Appeals Division I decided the trial court mistakenly denied the defendant’s motion to have a witness testify telephonically from Mexico.

The defendant was charged with Rape of a Child in the First Degree. While the case was pending, he filed a notice of the defense of alibi. The Prosecutor changed the trial dates and amended the charges. In response, Defense Counsel filed and argued a motion to dismiss under CR 8.3(b). Because of this, Defense Counsel argued a potential witness in Mexico will most likely need to be contacted to refute the amendment to the charges.

On March 27, 2013, the trial court heard a defense motion to permit the telephonic testimony of witness Ms. Camacho. Defense counsel argued that because of Camacho’s immigration status, the court should allow her to testify by telephone or, alternatively, order her telephonic deposition. Although Defense Counsel argued that Camacho’s testimony was material, the court denied the motion for telephonic testimony. The court also denied Defense Counsel’s motion for a continuance. Finally, at trial, the court excluded Camacho’s Skype testimony and phone call testimony of other witnesses. Not surprisingly, the jury returned a verdict of guilty.

On appeal, the WA Court of Appeals held the trial court abused its discretion by excluding the telephonic testimony of this defense witness.

First, the court reasoned that the Fifth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution guarantee that “no person shall be deprived of life, liberty, or property, without due process of law.” This right to due process includes the right to be heard and to offer testimony. The accused’s right to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.

Second, said the court, the right to call witnesses in one’s own behalf has long been recognized as essential to due process. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” Additionally, Washington courts have broad authority under ER 611 to control trial proceedings and also have discretion to permit telephonic testimony under CR 43(a)(1).

Finally, the trial court abused its discretion when it excluded “essential facts of high probative value whose exclusion effectively barred [the defendant] from presenting his defense” without a showing by the State that allowing Camacho to testify by telephone would disrupt the fairness of the fact-finding process. This deprived the Defendant’s witness of the opportunity to present testimony that would have been relevant, material and vital to the defense; and violated his constitutional right to present a complete defense.

The court reversed the conviction and remanded for a new trial.

My opinion? Good decision. Obstructing a defendant from presenting witnesses for their defense violates the 6th Amendment. 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.

State v. O’Dell: Court May Consider Defendant’s Youth at Sentencing

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Due Process, Exceptional Sentencing, felony, Juvenile, Legislation, Rape, Sentencing, Sex Crimes, Studies, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. O’Dell,  the Washington Supreme Court held that a defendant’s youthfulness can support a lower prison sentence.

About 10 days after his 18th birthday, O’Dell had sex with 12-year-old A.N. The two met up on Sunday afternoon, along with a mutual friend, to drink wine and smoke cigars in the woods. Apparently, she, the friend, and O’Dell made plans to meet up again later that night but that the friend did not join them as planned. She and O’Dell sat in the woods to wait for their friend and, after a few minutes of talking, O’Dell forcibly raped her.

Sean O’Dell was convicted of Rape of a Child Second Degree. At O’Dell’s sentencing hearing, the defense requested a lighter sentence because, as he said it,  “The defendant’s capacity to appreciate the wrongfulness of his conduct, or to conform his conduct to the requirements of the law, was significantly impaired by youth.”

The defense also argued that when O’Dell committed his offense, he “was still in high school, associating with school age persons” and “was not some mid-twenties man hanging out at the local high school or trolling the internet for young people.”

Finally, the defense quoted portions of the United States Supreme Court’s decision in Roper v. Simmons, which held that it is unconstitutional to impose the death penalty on a juvenile. Roper relied on research, by various medical and psychiatric associations, indicating that juveniles are more susceptible to negative influences and impulsive behavior and therefore less morally culpable for their crimes relative to adults.

Despite Defense Counsel’s arguments, the trial court sentenced O’Dell to 95 months of prison and said that it could not consider age as a mitigating circumstance.

O’Dell committed this offense 10 days after his 18th birthday. As stated by his defense attorney, “had the incident happened two weeks prior, and assuming the State could not convince the Court to prosecute O’Dell as an adult, he would be facing 15-36 weeks in a well-guarded juvenile detention facility … rather than 78-102 months in an adult prison.”

On appeal, O’Dell challenged his 95-month sentence. He argued that the trial court abused its discretion when it refused to consider O’Dell’s own relative youth as a basis to depart from the standard sentence range.

The WA Supreme Court ruled that the trial court erred when it refused to consider O’Dell’s youth as a mitigating factor justifying a lower sentence. First, it reasoned that all defendants 18 and over are, in general, equally culpable for equivalent crimes. But it could not have considered the particular vulnerabilities – for example, impulsivity, poor judgment, and susceptibility to outside influences – of specific individuals. The trial court is in the best position to consider those factors.

Second, the WA Legislature defining an adult felony offender as “18 and over” did not have the benefit of psychological and neurological studies showing that the parts of the brain involved in behavior control continue to develop well into a person’s 20’s:

These studies reveal fundamental differences between adolescent and mature brains in the areas of risk and consequence assessment, impulse control, tendency toward antisocial behaviors, and susceptibility to peer pressure. Until full neurological maturity, young people in general have less ability to control their emotions, clearly identify consequences, and make reasoned decisions than they will when they enter their late twenties and beyond.

Finally, the Court concluded, in light of what we know today about adolescents’ cognitive and emotional development, the defendant’s youth may, in fact, relate to a defendant’s crime that it is far more likely to diminish a defendant’s culpability; and that youth can, therefore, amount to a substantial and compelling factor justifying a lighter sentence. “For these reasons, a trial court must be allowed to consider youth as a mitigating factor when imposing a sentence on an offender like O’Dell, who committed his offense just a few days after he turned 18.”

The WA Supreme Court remanded O’Dell’s case for re-sentencing.

My opinion? Good decision. The defense attorney was very intelligent to provide the court with studies showing that young offenders have less ability to control their emotions and impulses. This is very true. Indeed, this reasoning is exactly why the Washington Legislature adopted the Juvenile Justice Act in 1977 and treats young offenders differently than adult offenders.

Here, although the Defendant was categorically denied Juvenile Court because he was 18 years old, he was barely 18 years old when he committed the offense. He’s much closer to being a child than an adult. And until a young person turns 25, their brains haven’t fully developed. Good decision.

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

State v. Brock: WA Supreme Court Reverses Search of Backpack Case

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, police, Search and Seizure, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

In State v. Brock, the WA Supreme Court reversed the Court of Appeals decision to reverse the Defendant’s convictions for 10 counts of Identity Theft in the Second Degree, 3 counts of Forgery, and violation of the Uniform Controlled Substances Act.

Last year, in State v. Brock: The “Time for Arrest” Doctrine, I blogged about how the Court of Appeals reversed Brock’s conviction, agreeing with Brock that it was not a valid search of his person under article I, section 7 of the Washington Constitution. The court reasoned that under the “Time for Arrest” doctrine, Brock did not have actual, exclusive possession of the backpack “immediately preceding” arrest and reversed Brock’s conviction on that basis.

Well, the WA Supreme Court decided different.

The Court reasoned that the “Time for Arrest” doctrine didn’t apply because the Defendant’s backpack was a part of his person at the time of arrest:

“Under these circumstances, the lapse of time had little practical effect on Brock’s relationship to his backpack. Brock wore the backpack at the very moment he was stopped by Officer Olson. The arrest process began the moment Officer Olson told Brock that although he was not under arrest, he was also not free to leave. The officer himself removed the backpack from Brock as a part of his investigation. And, having no other place to safely stow it, Brock would have to bring the backpack along with him into custody. Once the arrest process had begun, the passage of time prior to the arrest did not render it any less a part of Brock’s arrested person.”

Based on that the WA Supremes reversed the Court of Appeals and decided the search was a valid search incident to arrest.

My opinion? Obviously, I agree with Justice McCloud’s dissenting opinion. He stated that the majority opinion ignores the strict limitations imposed on law enforcement during a Terry stop, confuses the justifications for a Terry frisk with the justifications for a search incident to arrest, and “conflicts with our precedent holding that a full custodial arrest is a prerequisite to any search incident to arrest.”

Justice McCloud couldn’t have said it better in the tongue-in-cheek retort in the last sentence of his dissent:

“I fear the majority’s new rule will only invite further expansions of our ‘narrow’ and ‘jealously guarded’ exception to the warrant requirement.”

Exactly.

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. Gauthier: The “Washout” Rule for Felony Convictions

"Washout" Rule, Bellingham, Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jury Trial, Rape, Sentencing, Sex Crimes, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Washout" Rule for Priors | Law offices of Alexander Ransom

Many clients approach me on the question of when prior felony convictions “Washout” from a Defendant’s offender scores. The recent case of State v. Gauthier is a good place to answer that question.

In Gauthier, the WA Court of Appeals Division I decided (1) the prosecutor’s closing arguments were fair,  (2) Gauthier received effective assistance of counsel, and (3) trial court properly calculated Gauthier’s offender score.

At trial, Mr. Gauthier was found guilty of Rape in the Second Degree. On appeal, he argued that the trial court improperly calculated his offender score by failing to recognize that his prior convictions “washed out” pursuant to RCW 9.94A.525(2)(c).

Some background is necessary. Under the “washout” provision, RCW 9.94A.535(2)(c), prior “Class C” felony convictions are excluded in a defendant’s offender score if, since the last date of release from confinement pursuant to a felony conviction or entry of the judgment and sentence, the offender spent five consecutive years “in the community” without committing any crime that subsequently results in a conviction.

In Gauthier’s case, he had five prior class C felony convictions. His last release date happened in June 2007. However, he did not remain crime free for five years. He was charged with the Rape Second Degree on March 13, 2009, and taken into custody to the King County Correctional Facility on July 23, 2010. There, he remained through his first trial on May 2011 which resulted in a conviction. He was subsequently sentenced on July 8, 2011. Consequently, the sentencing court properly calculated his offender score as a five (5) based on his five prior class C felony convictions.

Furthermore, at his sentencing on February 14, 2014, Gauthier argued that his five prior class C felonies should not be included in his offender score because he spent 43 months in custody before he was convicted again on the present offense. He claimed that under the “washout” statute, the “in the community” phrase includes the 43 months he spent in custody on this offense, thus his offender score is zero not five. The sentencing court rejected this argument, calculated his offender score as five, and sentenced him to 120 months with credit for all time served back to July 2010, the date he was first arrested.

Here, and similar to the trial court, the WA Court of Appeals rejected Gauthier’s arguments and also rejected Gauthier’s reliance on State v. Ervin, a somewhat recent case where the WA Supreme Court decided in favor of the defendant James Erwin’s arguments  that his 17 days of custody did not interrupt the requisite  5-year washout period:

“We have found no case, and Gauthier cites to none, where Ervin’s limited holding was applied to time spent in confinement while awaiting resolution of a felony charge. That is the precise circumstance present here. As the State correctly points out, Gauthier’s interpretation creates an absurd scenario—a defendant’s offender score will actually go down while he is in custody pending trial or pending sentencing. Indeed, that is an absurd result and a result we are confident the legislature did not intend.”

Simply put, if Gauthier had remained in the community for five years after June 2007 and remained crime free for those five years, his prior class C felony convictions would not count in his offender score after June 2012. It would have “washed out” under RCW 9.94A.535(2)(c). However, Gauthier’s 43 months in custody rendered hopeless any arguments that his priors would wash out.

The Court of Appeals upheld affirmed the trial court’s Judgment & Sentence and sentenced him to 120 months of prison.

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. Afeworki: “Band It” Restraint Is Constitutional

Bellingham, Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Homicide & Manslaughter, Ineffective Assistance, Sixth Amendment, Technology, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Afeworki, the WA Court of Appeals Division I held, among other rulings, that a “Band It” prisoner restraint system worn by the Defendant during trial does not violate the Constitutional right to a fair trial or the presumption of innocence.

The Defendant Tomas Afeworki was charged with Murder in the First Degree. During pretrial proceedings, he experienced significant and ongoing conflict with each of his several attorneys. On the eve of trial, Afeworki repeatedly threatened his attorney, who was permitted to withdraw as a result. Afeworki was, thereafter, required to represent himself. He was found guilty.

On appeal, Afeworki contends that this deprived him of his right to counsel. After threatening his attorney, Afeworki was also required to wear a “Band It” physical security restraint, not visible to observers, while in the courtroom. Afeworki argues that wearing the “Band It” violated his right to a fair trial.

The court reasoned that under State v. Finch, a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances. This is to ensure that the defendant receives a fair and impartial trial as guaranteed by the Sixth Amendment and Fourteenth Amendment of the United States Constitution and the Washington State Constitution.”

In short, restraining a defendant during trial infringes upon this right to a fair trial for several reasons: (1)it violates a defendant’s presumption of innocence, (2) it restricts the defendant’s ability to assist his counsel during trial, (3) it interferes with the right to testify in one’s own behalf, and (4) it offends the dignity of the judicial process.

Washington case law also says that, given the constitutional implications of using restraints in a criminal trial, shackles or other restraining devices should only be used when necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to prevent an escape. That said, a trial court has broad discretion to determine which security measures are necessary to maintain decorum in the courtroom and to protect the safety of its occupants.

A trial court may consider the following factors in determining whether the use of restraints is justified: the seriousness of the present charge against the defendant, their temperament and character, age, physical attributes, past record, past escapes or attempted escapes, evidence of a present plan to escape, threats to harm others or cause a disturbance, self-destructive tendencies, the risk of mob violence or of attempted revenge by others, the possibility of rescue by other offenders still at large, the size and the mood of the audience, the nature and physical security of the courtroom and the adequacy and availability of alternative remedies.

The court described the “Band-It” restraint system as a device that essentially as a 50,000-volt taser contained in a band that is worn under a sleeve or pant leg. Unlike most restraints, which are either visible to jurors or readily perceived by jurors, the Band-It is not visible when the wearer is clothed. Also, unlike other restraints, the Band-It does not in any way directly constrain the wearer’s movements. In fact, the Band-It can cause a wearer’s movements to be constrained only when it is activated.

Here, reasoned the court, the Band-It restraint system does not implicate the presumption of innocence because it is not visible to observers. Moreover, it does not implicate the defendant’s right to the assistance of counsel because it does not physically constrain a defendant’s movements. Finally, the defendant’s antics, aggressive behavior and threats to his defense counsel justified the trail judge’s reasons for making the defendant wear the device:

“The court thereby fashioned a comprehensive order that protected both Afeworki’s constitutional rights and the safety of the people present in the courtroom for his trial. The trial court’s decision was reasonable. There was no error.”

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. Rhoden: Illegal 2-Step Confession Violates Miranda

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Interrogation, Jury Trial, law enforcement, Methamphetamine, Miranda, police, Self-Incrimination, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Police Engage in Illegal Interrogation Tactics and Conviction Gets Reversed — Jacksonville Criminal Lawyer Blog — April 13, 2018

In State v. Rhoden, the WA Court of Appeals Division II held that the trial court failed to suppress Mr. Rhoden’s statements made to police during an improper two- step interrogation procedure.

The facts were such that on February 26, 2013, the Pierce County Sheriff’ s Department served a search warrant on a residence in Puyallup. Five occupants of the residence, including Rhoden, were handcuffed.

Two interrogations happened. The first interview happened when Deputy Olesen questioned the handcuffed occupants in the living room of the home. Importantly, he failed to advise the suspects of their constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 ( 1966).

For those who don’t know Miranda warnings (often abbreviated to “Miranda“, or “Mirandizing” a suspect) is the name of the formal warning that is required to be given by police in the United States to criminal suspects in police custody (or in a custodial situation) before they are interrogated, in accordance with the Miranda ruling. Its purpose is to ensure the accused are aware of, and reminded of, various rights under the U.S. Constitution, and that they know they can invoke them at any time during the interview.

At any rate, Mr. Rhoden told Deputy Olesen there were drugs and a gun in the bedroom.  At that point, Deputy Olesen then escorted Rhoden to the kitchen and questioned him a second time and after finally advising Rhoden of his Miranda rights.

During the post –Miranda second interview, Deputy Olesen asked Rhoden the same questions that he had asked Rhoden in the living room before giving the Miranda warnings.

Mr. Rhoden said there was about a gram of methamphetamine located in the dresser on the left side of his bed and that he had been smoking methamphetamine for approximately the last two to three months. During a search, officers found several items in a dresser, including ( 1) small baggies containing a substance later tested and confirmed to contain methamphetamine, (2) an electronic scale, ( 3) glass smoking devices, and (4) documents containing Rhoden’ s name and the address of the residence being searched.

Rhoden was charged with one count of Unlawful Possession of a Controlled Substance (Methamphetamine) under RCW 69.50.401. Before trial, the trial court conducted a CrR 3. 5 hearing to determine the admissibility of Rhoden’ s statements to police.

The trial court held that Rhoden’ s pre-Miranda statements to police were not admissible at trial and that his post -Miranda statements to police were admissible at trial. At trial, the jury found Rhoden guilty of the charges. Mr. Rhoden appealed his conviction.

The Legal Issue

On appeal, the legal issue was whether the Miranda warnings given to Rhoden during the second interrogation were effective to inform Mr. Rhoden of his Fifth Amendment right to keep silent when he had just provided the same incriminating information in the first interrogation for which he was not given Miranda warnings.

The Rule: Missouri v. Seibert

The court looked to Missouri v. Seibert, 542 U.S. 600, 604- 06, 124 S. Ct. 2601, 159 L. Ed. 2d 643 ( 2004) for guidance. In that case, the United States Supreme Court held that Miranda warnings were ineffective to inform the defendant of their right against self-incrimination in circumstances similar to these. As here, the warnings in Seibert were given only after the suspect had confessed during a custodial interrogation without Miranda warnings.

The Seibert Test

After reviewing Missouri v. Seibert, the court discussed the Seibert est. First, if a court determines that the use of the two- step interrogation procedure was deliberate, it then must ” determine, based on objective evidence, whether the midstream warning adequately and effectively apprised the suspect that he had a “genuine choice whether to follow up on his earlier admission.”

In making this determination, courts may consider whether any curative measures were taken to insure the suspect’ s understanding of his or her Miranda rights. Such curative measures may include a significant break in time and place between the pre- and post –Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

The court compared the Missouri v. Seibert case to Mr. Rhoden’s facts. It reasoned that similar to Rhoden’s situation, the interrogating officers in Seibert questioned the defendant without Miranda warnings yet later gave Miranda warnings in a second interview before obtaining the suspect’ s confession without a significant break in time or place and without measures to assure the suspect that her non-Mirandized statements could not be used against her in a subsequent criminal prosecution.

Applying Seibert to the Facts

The Court then applied the two-part Seibert test the facts at hand. It reasoned that here, the police deliberately used the two- step interrogation procedure. During the initial interrogation in the living room before giving Miranda rights, Olesen asked the five handcuffed suspects whether there were any drugs in the home, and Rhoden admitted that he had a small quantity of methamphetamine in his bedroom. After completing his questioning of the group in the living room, Olesen escorted Rhoden to the kitchen, read Rhoden his Miranda rights, and repeated the same questions he had asked in the living room, to which Rhoden answered consistently with his responses given before receiving the Miranda warnings.

Thus, reasoned the court, the objective evidence of “the timing, setting and completeness of the pre-warning interrogation, the continuity of police personnel and the overlapping content of the pre and post-warning statements” all support the conclusion that the two- step interrogation procedure used here was deliberate.

The court applied the second inquiry, which examined the effectiveness of the midstream Miranda warnings. In this inquiry, the question was whether any curative measures were present, such as a significant break in time and place between the pre- and post -Miranda questioning or an additional warning that the suspect’ s pre –Miranda statements could not be used against the suspect in a subsequent criminal prosecution.

Here, the evidence at the CrR 3. 5 hearing showed that there was not a significant break in time or place between the pre- and post -Miranda interrogation. Perhaps more importantly, the evidence also showed that Olesen did not take any additional measures to insure that Rhoden understood his Miranda rights, such as advising him that his pre –Miranda statements could not be used against him. Accordingly, the Court of Appeals held that the trial court erred by failing to suppress Rhoden’ s post –Miranda statements.

Failure to Suppress Rhoden’s Statements Was Not Harmless Error

Finally, the Court of Appeals decided that the trial court’s decision to not suppress Rhoden’s statements was not harmless error. It reasoned that constitutional error is harmless if the appellate court is convinced beyond a reasonable doubt that any reasonable jury would have reached the same result in the absence of the error. Here,  and under the circumstances, the Court of Appeals reasoned that it could not conclude beyond a reasonable doubt that any reasonable jury would have reached the same guilty finding absent evidence of Rhoden’ s challenged admissions.

My opinion? Excellent decision. The Court of Appeals acknowledged the subtle – and unlawful – “2-Part Inquiry” of the arresting officer in this case. This technique is commonly used by law enforcement to unlawfully obtain statements from defendants and simultaneously circumvent Miranda. Good work, Court of Appeals!

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. Strange: Was the Jury “Tainted” or Impartial?

Bellingham Defense Attorney, Due Process, felony, Ineffective Assistance, Jury Selection, Jury Trial, Juvenile, police, Pretrial Investigations, Sex Crimes, Sixth Amendment, voyeurism, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Strange, the WA Court of Appeals Division II decided the defendant’s right to a fair and impartial jury was not violated by a prospective jurors’ statements concerning their own prior experiences with child molestation.

Here, defendant George Strange was accused of Child Molestation Second Degree and Voyeurism. from 2011 to 2013, Strange lived with his wife and his wife’ s children, who are juveniles. Here, juvenile J.M. was 12 years old when Strange allegedly fondled her breasts one night. He explained he was giving her a breast examination.

During jury selection, the court and attorneys asked the prospective jurors about their personal experiences with child molestation. Although most of the jurors had no personal experience with child molestation, almost one-third of the jurors knew someone who was either a victim or had been charged with child molestation. In response to the court’ s questioning, juror no. 54 stated,

JUROR: “Um — what I said before, like, I know people that I know. Like it’ s not an easy accusation to make. Like, it is hard for people (inaudible). It’ s like if accusations were made there’ s something behind that . . . I don’ t — like, I don’t have a ton of experience but it has just been my experience people don’ t make that accusation, you know, for no reason. Like, I feel like if an accusation was made there had to be something that had happened.”

Juror no. 54 was excused for unrelated hardship reasons.

During trial, other witnesses testified to Strange’s odd behavior around J.M. Additionally, the State played a recorded video of Strange being interviewed by a police detective who commented on Strange’s behavior during the interview. Finally, Strange did not call any witnesses nor did he testify. At the end of trial, Strange was found guilty on all counts.

On appeal, Strange argued that his right to a fair trial by an impartial jury was violated because of prospective jurors’ statements concerning their own prior experiences with child molestation, either in their families or among friends or acquaintances, which tainted the entire jury venire.

The court rejected Strange’s arguments. It reasoned that article I, § 22 of the Washington Constitution guarantees a criminal defendant the right to a fair trial by unbiased jurors.” Also, the Sixth Amendment to the United States Constitution also guarantees the right to a fair trial by impartial jurors. Here, no prospective juror professed any expertise about sexual abuse cases. Therefore, there is no concern about a prospective juror with more credible, authoritative knowledge tainting the rest of the jury pool.

Second, most jurors were merely questioned about their experiences with child molestation and asked if they could remain impartial. Some jurors admitted to a potential bias, most said they could apply the court’ s instructions impartially, and two prospective jurors asked for individual voir dire, preferring not to talk about their experiences in front of the rest of the jury pool. Consequently, the Court of Appeals decided that Strange received a fair trial by an impartial jury.

Finally, the court rejected Strange’s argument that his defense attorney was ineffective because he failed to object to the admission of Strange’s recorded interview with police. The court reasoned that because defense counsel’s failure to object was a legitimate trial tactic, it cannot be said that Strange’ s trial counsel’ s performance was deficient. Therefore, his claim for ineffective assistance of counsel fails. The decision of Strange’s attorney to not play the video was a legitimate trial tactic, and did not amount to ineffective assistance of counsel.

My opinion? Oftentimes, during jury selection, prospective jurors say things out loud which may appear to discredit the defendant, especially when the charges are particularly galvanizing. A defense attorney must be cautious in proceeding with these jurors. A good technique is to ask the juror to extrapolate “what they mean” if the juror says they have difficulty being objective, and/or if the juror says the defendant “must be guilty of something.” The attorney can strike the juror for cause because the juror could be biased against the defendant.

Still, it’s difficult to “unring the bell,” so to speak, when a prospective juror says controversial things which may hurt the defendant’s chances at trial if the rest of the jury pool believes that juror’s statements. This is the essence of “tainting the jury,” which is reversible error and should be avoided at all costs. In response, another good tactic is to inquire if other potential jurors feel the same as the juror who aired their grievances. Find someone shaking their head “No.” Ask them why.

Chances are, they’ll say something about giving the defendant a fair trial, or presumption of innocence, or something like that. Test the waters. Guide the jurors back toward their oath that they MUST presume the defendant not guilty throughout trial. Remind them that if they serve as jurors, they’re under oath to withhold their personal biases and reserve judgment until after hearing all of the evidence.

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. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Firearm, Informant, Juvenile, law enforcement, marijuana, Obstructing, police, Search and Seizure, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, WA Supremes!

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.