Category Archives: felony

State v. Davis: Unlawful Possession of Firearms, Rendering Criminal Assistance and Exceptional Sentences.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, Mount Vernon Criminal Defense Attorney, police, Probable Cause, Rendering Criminal Assistance, Sentencing, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Sherrard man to serve 7 years in prison for possession of stolen guns | wqad.com

WA Supremes gave an interesting opinion touching upon the defendants who were allegedly involved in the Lakewood police officer shootings from last year. In short, the Supreme Court could not reach a 5-4 majority opinion on the issue of whether the State lacked evidence to support the defendant’s convictions for Possession of a Stolen Firearm. However, the State reached a majority “No” decision on the issue of whether Exceptional Sentence applied to this case. 

The underlying facts of State v. Davis are notorious and undisputed. On Sunday, November 29, 2009, Clemmons entered a coffee shop just before 8:00 a.m. with two handguns and began shooting at four Lakewood police officers, fatally wounding three. The fourth officer struggled with Clemmons and shot Clemmons once in the side, but Clemmons wrested the fourth officer’s gun from him, fatally shot him, and left with the stolen gun.

While on the run, Clemmons contacted defendants Eddie Lee Davis and Letrecia Nelson shortly after the murders. Clemmons went to Davis’ home, requested a ride to a house in Auburn, and said he had been shot while killing four police officers. Davis drove Clemmons to Nelson’s home. Nelson let Clemmons and Davis inside. Clemmons told Nelson he had killed four police officers, been shot in the process, and stolen one officer’s gun.

At Clemmons’ request, he was given fresh clothing and help treating his gunshot wound. Nelson put some clothes and the stolen gun in a shopping bag that was left on a counter. Just before leaving, Clemmons asked where the gun was. Davis replied that it was in the bag on the counter and gave the bag to Clemmons. He left the home with the gun, and remained a fugitive from justice. On December 1, 2009, 2-3 days after the incident, Clemmons was gunned down by a Seattle Police Officer who pulled his car over.

Based on their actions following that contact, Davis and Nelson were charged by the Prosecutor and convicted at jury trial of Rendering Criminal Assistance and Possession of a Stolen Firearm. Davis was also convicted of Unlawful Possession of that self-same firearm. The conviction was appealed, and found its way to the WA Supreme Court.

The Court addressed the issues of whether (1) sufficient evidence supported Davis’ and Nelson’s convictions relating to possession of a firearm, and (2) whether the exceptional sentences for rendering criminal assistance factually were legally justified.

1. UNLAWFUL POSSESSION OF A FIREARM

The 4-person “majority” Court answered “Yes” to the question of whether sufficient evidence existed to support the convictions. The court reasoned there are two types of control: actual and constructive. A person actually possesses something that is in his or her physical custody, and constructively possesses something that is not in his or her physical custody but is still within his or her “dominion and control.”

For either type, to establish possession the prosecution must prove more than a passing control; it must prove actual control. The length of time in itself does not determine whether control is actual or passing, and whether one has actual control over the item at issue depends on the totality of the circumstances presented.

In light of the totality of the circumstances, the Court was convinced that the State presented sufficient evidence to support a finding that Clemmons temporarily relinquished control over the stolen gun to Davis and Nelson while his wound was treated and he changed clothes. There was no testimony that Clemmons made any specific requests or orders as to what should be done with the stolen gun while he was at Nelson’s home, and he did not even know where the gun was until he was ready to leave about 15 minutes later.

t is reasonable to infer that someone else decided what to do with the gun and that the decision-makers were Nelson and Davis because Nelson retrieved the shopping bag and put the gun inside it and Davis immediately responded when Clemmons asked where the gun was. Furthermore, both Nelson and Davis retained the ability to take further actions as to the gun until the time Davis gave it back to Clemmons because they knew where it was and Clemmons did not. Therefore, the court believed there was actual control sufficient to establish constructive possession.

2. EXCEPTIONAL SENTENCES

The Court answered “No” to the issue of whether the defendants should receive an exceptional upward sentence for their convictions. The Court said Exceptional Sentences are intended to impose additional punishment where the particular offense at issue causes more damage than that contemplated by the statute defining the offense. In that situation, the standard penalty for the offense is insufficient and an exceptional sentence based on an “aggravating factor” found by the jury remedies that insufficiency.

Here, the Court reasoned that, as a matter of law, the “aggravating factor” at issue cannot apply to Rendering Criminal Assistance charges.  Here, the “victim” was the public at large. However, Exceptional Sentences apply where there is “a destructive and foreseeable impact on persons other than the victim.” Because Rendering Criminal Assistance victimizes the general public, every member of the public is part of the victim class. There is no “other.” Therefore, the exceptional sentences imposed on Davis and Nelson were not legally justified.

The WA Supreme Court was highly divided on this issue. Justice Wiggins appeared to be the swaying vote. He concurred with the dissenting opinion that the evidence was insufficient to sustain Davis’s and Nelson’s firearm possession convictions. However, Justice Wiggins concurred with the majority opinion as far as the decision that the Exceptional Sentences imposed for Eddie Davis’s and Letricia Nelson’s convictions for Rendering Criminal Assistance were not legally justified.

Ultimately, the WA Supreme Court reversed the Court of Appeals and remand for further proceedings.

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. Nicholas: Court Rejects “Jury Nullification” Arguments

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Nullification, Jury Trial, marijuana, Methamphetamine, Uncategorized, Washington Court of Appeals, , ,

What is Jury Nullification and Why is it Important? | Nevada CopBlock

VERY interesting opinion from the WA Court of Appeals raises and dismisses the issue of whether jury nullification has any place in jury deliberations.

In State v. Nicholas, a jury found defendant Scott Nelson guilty of Possession with Intent to Deliver Methamphetamine, Possession of Marijuana and Use of Drug Paraphernalia. Nicholas appealed the verdict and argued that the trial court errored when it allowed the Prosecutor’s jury instruction saying, it was the jury’s “duty to return a verdict of guilty.”

Some background on jury nullification is necessary. Basically, it occurs in a trial when a jury acquits a defendant, even though the jury believes the defendant is guilty of the charges. This happens when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. Nullification is a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to the juror’s sense of justice, morality, or fairness.

Here, the defendant took issue with the notion that the “To Acquit” instruction from the Prosecutor states that jurors have a duty to acquit if they found the defendant guilty of the charges. This “duty” language, said the defendant, violates his right to have the jury acquit him if they disagreed with the law itself.

However, the Court of Appeals reasoned that the State of Washington’s 1874 case Hartigan v. Territory of Washington disassembles the defendant’s argument: The Hartigan court wrote, “A juryman is just as much bound by the laws of this territory as any other citizen. He acquires no right to disregard that law simply because he has taken an oath as juryman to aid in its administration.”

The court also reasoned, “Judges must declare the law, while jurors must swear to faithfully apply that law.” Their oath to faithfully apply the law is under RCW 4.44.260, which states the following:

When the jury has been selected, an oath or affirmation shall be administered to the jurors, in substance that they and each ofthem, will well, and truly try, the matter in issue between the plaintiff and defendant, anda true verdict give, according to the law and evidence as given them on the trial.

Consequently, the Court reasoned that the use of the word “duty” is consistent with the oath requirement that the jury give a true verdict, and that it does so according to the law and evidence.

Finally, the Court discussed the horrors surrounding the verdicts of defendants accused of killing and maiming individuals because of racial hatred, and that these jurors exercised jury nullification even though the evidence against the defendants was strong. The court describes how the murder trials involving the death of African American Emmett Till and NAACP leader Medgar Evers were horrible examples of jury nullification gone wrong.

The Court of Appeals concluded with a strong, scathing remark on jury nullification:

A fundamental value of America is the rule of law rather than rule by men. The Washington populace justifiably does not want activist judges who base decisions upon political views or moral judgments. The same should hold true for jurors. Jury nullification destroys the rule of law upon which America is based. As the 1992 Los Angeles riots evidence, nullification engenders anarchy.

My opinion? I see the pros and cons of this decision. On the one hand, I agree with the court that jury nullification can lead to horrible results and miscarriages of justice. On the other hand, although jury nullification is by no means a Constitutional right, it is an inherent feature of the use of jury trial verdicts. Sometimes, the law is simply unjust, misapplied by Prosecutors or simply out-of-touch with today’s reality.

For the most part, jury nullification is sometimes applied by juries yet rarely spoken about in open court. It is  certainly not supported by judges. 99.9% of all judges will refuse to formally instruct juries that the may “nullify” and acquit a defendant based on their disagreements with the law itself.

Indeed, judges constantly tell juries they must apply the law, not disagree with it! Judges know that the power to acquit a defendant does not require any instruction from the judge telling the jury that it may do so. In other words, although courts recognize that jury nullification occurs in practice, they will not promote it nor educate jurors about nullification.

Again, 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.

State v. Lawson: Burglary & Voyeurism

Assault, Burglary, Constitutional Rights, Evidence, felony, Privacy, Probable Cause, Uncategorized, voyeurism, Washington Court of Appeals, , ,

How To Tell Who's In The Toilet Stall Next To You Without Peeking At Their Shoes - Allan Ishac

In State v. Lawson, the WA Court of Appeals supported the defendant’s convictions for both Voyeurism and Burglary. Here, the defendant was prosecuted for sneaking inside the women’s restrooms at Harrison Medical Center and Barnes & Noble and spying on different females from bathroom stalls as they entered and used the restroom facilities.

The Prosecution charged the defendant with one count of Burglary First Degree, two counts of Burglary Second Degree, one count of Assault Second Degree, one count of Voyeurism, and two counts of Criminal Attempt of Voyeurism. The jury returned guilty verdicts on each charge except for Assault Second Degree. The defendant appealed the jury verdicts on the argument that the State failed to introduce sufficient evidence to prove the Barnes and Noble voyeurism charge and each of the Burglary charges.

However, the Court of Appeals disagreed. Under statute, a person commits the crime of Voyeurism if he knowingly views another person in a place where that person would have a reasonable expectation of privacy. Here, a person has a reasonable expectation of privacy inside a restroom. The Court reasoned it is undisputed that the defendant viewed women by peeking over the restroom stall door in a place that was clearly delineated for use by women only. It stated, “Although the women’ s restroom was inside an otherwise public building and while a person might not usually disrobe inside the common area, one expects privacy in a restroom.”

 The Court also rejected the defendant’s argument that the evidence is insufficient to support Burglary convictions because voyeurism is not “a crime against person or property,” which is a prerequisite to a Burglary conviction. Instead, the Court reasoned that voyeurism is a crime against a person and, therefore, can serve as the predicate crime for Burglary Second Degree. The Court further reasoned there was sufficient evidence to conclude that the defendant was guilty of the Burglaries because he entered the women’ s restroom with the intent to commit a crime against a person or property.

With that, the Court affirmed the defendant’s convictions.

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. Goggin: Implied Consent Warnings for Blood Test & Crawford Issues

Blood Test, Constitutional Rights, Due Process, DUI, Evidence, felony, law enforcement, police, Terry Stop, Washington Court of Appeals, Washington Supreme Court, , ,

DUI Blood Test (A Former DA Explains How To Beat It In Court)

In State v. Goggin, Division II of the Court of Appeals held that when a blood test is collected pursuant to a search warrant, the officer is not required to advise the defendant that the defendant has a right to additional tests. Also, proof of the defendant’s prior DUI conviction from Idaho was admissible; and the admission did not violate the confrontation clause. 

Mr. Goggin was arrested for DUI. After taking Mr. Goggin in for a blood alcohol concentration (BAC) test, Officer Marcus read Mr. Goggin his implied consent warnings, including his right to have additional tests performed by a person of his own choosing. Mr. Goggin indicated he understood his rights and signed the implied consent form. Officer Marcus obtained a search warrant to draw a sample of Mr. Goggin’s blood. It was taken about three hours after his arrest and without any further independent-testing advisement. 

Mr. Goggin was charged with Felony DUI because he allegedly had four prior DUI convictions.

At trial, Goggin moved to suppress the results of the blood test based on the officer’s failure to advise him of his right to an additional test after obtaining the warrant. The trial court said, “This was a blood draw authorized by a search warrant. The trooper did not have to advise the defendant of the right to additional tests.” Later, Goggin was found guilty. He appealed.

During cross-examination, defense counsel asked Trooper Marcus whether he re-read the implied consent warnings to Mr. Goggin after obtaining the search warrant:

Defense counsel: Did you at any time advise him as part of any warnings related to the blood test that he could get an additional blood test?

Trooper Marcus: That was in part of the implied consent warnings for breath. It states in there that you have the right to additional tests administered by a qualified person of your own choosing.

Defense counsel: You have separate warnings for blood; do you not?

Trooper Marcus: We do, but implied consent warnings for blood weren’t read in this case.

Later in trial, the Prosecutor admitted evidence of the defendant’s prior DUI from Idaho. Although no witnesses actually testified that Mr. Goggin actually had a prior DUI from Idaho, the prosecutor successfully admitted into evidence the Judgment and Sentence conviction data from the Idaho court. Mr. Goggin tried dismissing the case based on the State’s failure to produce a witness from Idaho who could provide evidence that he had been arrested in Idaho. The court denied the motion, finding sufficient circumstantial evidence to go to the jury. The jury found Mr. Goggin guilty of felony OUI. He appealed.

The Court of Appeals held that the arresting officer was not required to advise Mr. Goggin of the right to additional tests because the blood draw was authorized by a search warrant, not the implied consent statute. The Court reasoned that City of Seattle v. Robert St. John, and  RCW 46:20.308(1) allows officers to “obtain a search warrant for blood alcohol tests regardless of the implied consent statute.”

In St. John, the motorcyclist refused to take the voluntary test; but, the evidence that the motorcyclist was driving under the influence constituted sufficient probable cause to justify a warrant. Similarly here, the search warrant and subsequent blood alcohol test were the result of evidence showing Mr. Goggin was driving under the influence. Thus, the State was not required to re-advise Mr. Goggin of his right to additional tests after issuance of the search warrant.

The Court also held that Goggin’s constitutional right to confront a witness under Crawford v. Washington were not violated when the State failed to produce a witness who could testify about Goggin’s prior DUI from Idaho. Here, the State met its burden of proving Mr. Goggin was the same Joseph Goggin convicted of the 2009 DUI in Idaho by submitting Mr. Goggin’s 2007 to 2011 Washington State Identification card.

his photographic identification card included Mr. Goggin’s height and weight, hair and eye color, and his address. This information matched the identifying information in the 2009 Idaho judgment and sentence. The identification card was issued in 2007 and was valid until 2011; thus, it corresponded with the date of the Idaho conviction. Accordingly, the State provided sufficient evidence of this fourth DUI to support the conviction for felony DUI.

Also, Mr. Goggin’s Idaho judgment and sentence was inherently trustworthy. It was not created in anticipation of litigation or to prove a fact at trial; therefore, it was not necessary to cross-examine the clerk who certified the document. A certified record not prepared for use in a criminal proceeding but created for the administration of an entity’s affairs is not testimonial evidence under Crawford v. Washington. Accordingly, the admission of the Idaho judgment and sentence did not violate Mr. Goggin’s confrontation rights.

The Court of Appeals upheld Mr. Goggin’s conviction.

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

State v. Witherrite: Ferrier Warnings Do Not Apply to Car Searches

Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, Knock & Talk, law enforcement, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, , ,

Unreasonable Search and Seizure - Passengers, Tire Chalking, Warrantless Searches

Interesting. In State v. Witherrite, the Court of Appeals decided that law enforcement officers need not give Ferrier warnings for car searches because an automobile should not be treated in the same manner as a home.

A deputy sheriff stopped Ms. Witherrite for a traffic violation and had her perform field sobriety tests. The deputy then received permission to search Ms. Witherrite’s car after advising her that at any time she could stop or limit the scope of the search. The deputy did not tell her that she had the right to refuse consent.

The vehicle search turned up marijuana, methamphetamine, and drug paraphernalia. The prosecutor ultimately charged Drug Offenses for each of those items. She moved to suppress the evidence, arguing that her consent was invalid due to the absence of the warnings required by State v. Ferrier, 136 Wn.2d 103,960 P.2d 927 (1998). The trial court disagreed, concluding that Ferrier did not extend to vehicles and that Ms. Witherrite had consented to the search. The court found her guilty as charged. Ms. Witherrite timely appealed.

The issuel presented on appeal was whether the Court would extend Ferrier warnings to vehicle searches.

Some background on Ferrier is necessary. In Ferrier, the Washington Supreme Court faced a situation where officers wanted to get inside a house to see if they could smell growing marijuana which they suspected was present on the basis of an unsupported tip. The officers did not tell the occupant that she had the ability to refuse consent. After being invited into the home, the officers asked for consent to search the residence. A detective explained that this “knock and talk” procedure was used in order to avoid seeking a search warrant. The defendant consented to the search and was convicted of the charges.

The Washington Supreme Court reversed the conviction, ruling that because the woman had a heightened right of privacy in her home. Under article I, section 7 of the WA Constitution, officers could not enter a home to seek voluntary consent to search the dwelling without first informing her that she did not need to consent to the entry. The court’s analysis repeatedly emphasized the heightened protection given the home under our constitution. The court then adopted the following rule:

When police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and that they can revoke, at any time, the consent that they give, and can limit the scope of the consent to certain areas of the home.

Despite the above rule, the WA Court of Appeals in this case decided Ferrier warnings are NOT applicable outside of the home because the Washington Supreme Court has long distinguished houses from vehicles in the search and seizure context.

One particularly instructive case the court examined was State v. Vrieling, 144 Wn.2d 489,28 P.3d 762 (2000). There, a deputy sheriff stopped a motor home and arrested the driver, Ms. Vrieling. A search of the motor home was conducted incident to the arrest. The question before the court was whether the then-existing vehicle search doctrine applied to the search of the motor home, which is essentially a house-like vehicle. The court ultimately concluded that when a motor home is used as a vehicle, the vehicle search doctrine applied and apparently, Ferrier warnings do not.

The treatment of the home as most deserving of heightened protection under the WA constitution led the court to conclude that Ferrier warnings need not be given prior to obtaining consent to search a vehicle.

My opinion? Sad as it seems, this opinion makes sense. There certainly are differences between a car and a home. Simply put, homes have more privacy protections than cars.

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. Fedoruk: Ineffective Assistance AND Prosecutorial Misconduct

Constitutional Rights, DNA, Due Process, Evidence, felony, Homicide & Manslaughter, Ineffective Assistance, Jury Trial, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Prosecutorial Misconduct? - Angus Lee Law Firm

In State v. Fedoruk, Division II overturned the conviction of a defendant charged with Murder in the Second Degree. The court ruled (1) Mr. Fedoruk received ineffective assistance of counsel because his attorney failed to timely pursue a mental health defense and did not object to alleged prosecutorial misconduct; and (2) the prosecutor committed flagrant and ill-intentioned misconduct in closing argument by undermining the presumption of innocence, encouraging the jury to decide the case on grounds other than reasoned evaluation of the evidence, expressing personal opinions as to Fedoruk’ s guilt, and presenting evidence not admitted at trial.

Mr. Fedoruk was charged with Murder in the Second Degree of a relative named Ischenko, whom Fedoruk had accused of raping a family member.

Apparently, Mr. Fedoruk had a long history of serious mental illness. He suffered a head injury in a motorcycle accident at the age of 18, was diagnosed with schizophrenia, and was twice admitted to a psychiatric hospital. Doctors have prescribed numerous psychotropic and antipsychotic medications, but Fedoruk had a history of poor compliance with the medication regimens.

During a 2007 competency evaluation, doctors at Western State Hospital diagnosed Fedoruk with bipolar disorder, most recent episode manic, with psychotic features. Fedoruk underwent another mental health evaluation after the State charged him with Robbery, Assault, Theft, and Criminal Trespass in 2008, and a court ultimately found Fedoruk not guilty by reason of insanity.

Despite the above background of mental health issues, Fedoruk’ s defense counsel stated at a pretrial hearing that “the Defense has no intention of putting forward an affirmative defense of diminished capacity or arguing that … Fedoruk was incapable of forming intent at the time.” And although defense counsel later requested a 60-day continuance to pursue an Insanity defense, the trial judge denied the motion and ruled defense counsel failed to lay the foundation for the defense, and that diligence was not shown.

Fedoruk’s case proceeded to trial. At trial, the medical examiner testified that Ischenko died from blunt force trauma, and possibly also strangulation. A crime laboratory analyst testified that the DNA (deoxyribonucleic acid) profile obtained from bloodstains on Fedoruk’ s clothing matched Ischenko’ s. DNA from numerous bloodstains at the end of the driveway also matched Ischenko’ s profile, as did DNA in blood obtained from under Fedoruk’ s fingernails.

The trial proceeded to Closing Argument. The Prosecutor had a lengthy closing argument on PowerPoint. Among other improper statement, the Prosecutor concluded the presentation by showing a large image of Ischenko’ s body in a ravine under the heading “Murder 2.” On the final PowerPoint slide, under an enlarged ” Murder 2″ heading, the word “GUILTY” flashes, written with all capitals in a 96 -point red font. As these words and images appeared on the screen, the prosecutor delivered the following summation:

Serhiy Ishchenko. He’ s a brother. He was an uncle. He was a father. He was a tidy man, a hard worker and considerate. He was beaten to death, stomped to death, strangled to death. His body was left in a ravine and he was left for dead by the Defendant. Murder two. The Defendant is guilty, guilty, guilty. Thank you.

Fedoruk’s attorney did not object to any portion of the State’ s closing argument, or to the PowerPoint presentation.

First, the Court of Appeals addressed the issue of whether Fedoruk received ineffective assistance of counsel. It launched  into an in-depth analysis of State v. A.N.J., which is a recent case regarding ineffective assistance of counsel by defense attorneys. The court reasoned that pursuant to State v. A.N.J., the extensive history of Fedoruk’s mental illness, all of which was available to the defense from the beginning of the case, indicates that the decision to not seek an expert to evaluate Fedoruk until it was too late fell below an objective standard of reasonableness. “With that, Fedoruk was prejudiced by the failure to investigate a mental health defense. Accordingly, Fedoruk received ineffective assistance of counsel, and we reverse his conviction.”

Second, the Court addressed the issue of whether the Prosecutor’s closing argument was improper. To prevail on a prosecutorial misconduct claim, a defendant must show that the Prosecutor’ s conduct was both improper and prejudicial. To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury verdict.

Additionally, a Prosecutor who throws the prestige of her public office and the expression of her own belief of guilt into the scales against the accused deprives the defendant of the constitutional right to a fair trial. Finally, a Prosecutor enjoys wide latitude to argue reasonable inferences from the evidence, but must seek convictions based only on probative evidence and sound reason.

The court also reasoned that a prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury. Although a Prosecutor may point out a lack of evidentiary support for the defendant’ s theory of the case or  state that certain testimony is not denied, the general rule is that the State cannot comment on the lack of defense evidence because the defense has no duty to present evidence.

Here, the Court concluded that the Prosecutor’s closing argument was improper. First, the Prosecutor did not couch her assertions of guilt in terms of the evidence in the case, and she reinforced those assertions with inflammatory images. The Prosecutor conveyed to the jury her personal opinion that Fedoruk was guilty. This argument was improper.

Second, the Prosecutor asked the jury to infer guilt from the intuition of other witnesses who testified. Indeed, this served as the theme of her prepared remarks during closing argument. Therefore, this argument was improper. Finally, the prosecutor improperly commented on the lack of defense evidence by arguing that because Fedoruk did not present contrary evidence, Fedoruk agreed with the State’ s position. This, also, was improper. In sum, the court found the Prosecutor’s conduct was improper,  reversed the defendant’s conviction and remanded for a new trial.

My opinion? Although my heart goes out to the victim’s family, I’m happy with the Court of Appeals decision. Prosecutorial misconduct violates a defendant’s rights to a fair trial. It creates prejudices against the defendant which overwhelm a juror’s clear and rational thinking. And ultimately, it’s unnecessary. If a Prosecutor’s case is strong, then there is no need for misconduct. And the Court of Appeals said it best at the end of the opinion:

In legal doctrines, some distinctions seem cut with a jeweller’ s eye. Others seem more a work of watercolor, with one shade blurred into another. Although the line between zealous advocacy and improper argument may seem drawn in part in watercolor, the conduct at issue here fell outside its blurred zones. The prosecutor’ s actions described above constituted misconduct.

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. Espey: Prosecutor’s Improper Comments During Trial Reverses Defendant’s Convictions

Assault, Burglary, Constitutional Rights, Drug Offenses, Due Process, felony, Firearm, Jury Trial, Privacy, Prosecutorial Misconduct, Robbery, Violent Crime, Washington Court of Appeals, , ,

New trial ordered for murder suspect; Fifth District says Baricevic allowed improper testimony | Madison - St. Clair Record

Good opinion. In State v. Espey, The Court of Appeals ruled that a Prosecutor’s improper comments during a jury trial required reversal of the defendant’s convictions.

Mr. Espey was charged with Robbery First Degree, Burglary First Degree, Unlawful Possession of a Firearm First Degree, Possession of a Stolen Firearm and Unlawful Possession of a Controlled Substance. He had three separate jury trials. During closing argument at the second trial, the prosecutor argued the jury should consider Espey’s statement to police in light of the time he had spent consulting with attorneys prior to making the statement. The prosecutor said the following:

“Where I suggest you start is, start with his own recorded statement that he gave to the police. Keep in mind that he had been on the run for approximately six weeks. Keep in mind that he had already consulted with two attorneys, Chip Mosley and Gary Clower. He had lots of time to figure out what story he was going to tell the police.

If you have ever dealt with somebody who is a good liar, they have a pattern. What they do is this: admit everything you can’t admit without getting into trouble and only deny the stuff that you have to . . . You heard Tom Espey’s story in there. ‘I’m not guilty of robbery because i personally didn’t take anything. I’m free. Okay, I did everything else, but guess what? You can’t touch me.’ And he is wrong. He is wrong because he doesn’t understand what it means to be an accomplice. He doesn’t understand what accomplice liability means.”

Defense counsel did not object to these highly inflammatory and prejudicial statements. The jury convicted Espey of 3 of the 5 felonies.

In overturning the convictions, the Court of Appeals reasoned that the Prosecutor’s comments were so flagrant and ill-intentioned that no curative instruction could have stopped their prejudicial effect from swaying the jury. Therefore, defense counsel’s failure to object at trial did not waive the issue.

The court further reasoned that a defendant has a right to counsel under the state and federal constitutions under the 6th Amendment of the U.S. Constitution and article 1, subsection 22 of the Washington Constitution. Under these laws, several courts have held that a prosecutor violates these rights by using “an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment,” to imply guilt or suggest that the defendant hired an attorney to concoct an alibi. No prosecutor may employ language which denigrates the right of a criminal defendant to retain counsel of his choice, or otherwise limits the fundamental due process right of an accused to present a vigorous defense.

Finally, the court reasoned that the Prosecutor strikes at the core of the 6th Amendment right to counsel when it seeks to create an inference of guilt out of a defendant’s decision to meet with defense counsel. “That is precisely what the state did here and reversal is required as a result. The State thereby improperly commented on and penalized Espey’ s exercise of the right to counsel, a right guaranteed by the state and federal constitutions.”

The Court of Appeals reversed the convictions.

My opinion? Great 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. Miller: Judge Eliminates Prospective Juror Who Overheard Pretrial Motions

Constitutional Rights, Due Process, Evidence, felony, Homicide & Manslaughter, Jury Trial, Violent Crime, Washington Court of Appeals, , ,

Being a juror ain't so bad – Long Island Business News

In State v. Miller, the WA Court of Appeals decided that the pretrial dismissal of a potential juror who wandered into the courtroom and heard the attorneys arguing pretrial motions did NOT violate public trial right or defendant’s right to be present.

The defendant was charged with Conspiracy to Commit Murder and Murder in the First Degree. Before  jury selection, a juror from the jury pool entered the courtroom while pretrial issues were discussed between the attorneys and the judge. The trial court dismissed the juror from participating in the defendant’s trial before beginning voir dire.

At any rate, the defendant was found guilty of the charges. He appeals his conviction on the grounds that dismissing the potential juror from the jury pool violated his right to a public trial and his right to be present at critical trial stages.

The Court of Appeals decided ( 1) the trial court’ s pre -voir dire dismissal of the prospective juror did not violate Miller’ s public trial right, and 2) even if dismissal of the prospective juror during a recess violated Miller’ s right to be present at critical trial stages, the violation was harmless error.

The court reasoned that the 6th Amendment to the U.S. Constitution and article 1, section 22 of the WA Constitution guarantees the right to a public trial.  In general, this right requires that certain proceedings be held in open court unless a “Bone-Club” analysis set forth in State v. Bone-Club, 128 Wn.2d 254 (1995) supports closure of the courtroom.

The threshold determination when addressing an alleged violation of the public trial right is whether the proceeding at issue even implicates the right. Not every interaction between the court, counsel, and defendants will implicate the right to a public trial or constitute a closure if closed to the public.

Here, the Court reasoned that the trial court’s dismissal of the juror did not occur during voir dire itself, and therefore did not fall within the “category of proceedings that our Supreme Court has already acknowledged implicates a defendant’s public trial right.”  Finally, the Court held that even if Miller’ s right to be present was violated, this violation was harmless error.

 My opinion? Good decision. I’ll take a wild guess and assume the attorneys were arguing Motions in Limine when the potential juror wandered into court and listened. Motions in Limine are a very critical phase in the jury trial process, and happen before jury selection actually begins.

Among other things, motions in limine practice allow attorneys to establish the rules of engagement (what you can and can’t say during trial). More important, they address whether certain controversial evidence is going to be suppressed from the jury; and/or the manner/purpose for which said evidence is going to be admitted (if it is).

Worst-case scenario, a potential juror who overhears a conversation about Motions in Limine take place between the attorneys and judges can inform the jury about all the evidence which the jury doesn’t know about — all the evidence which was suppressed, scrubbed up; deemed irrelevant; prejudicial, cumulative, distracting, etc.

Watching attorneys practice Motions in Limine is like watching a butcher making sausage. It gets to the ugly, brutal and bloody aspects of the case; some of which are purposefully sealed away from the eyes and ears of the jury. Besides, jurors are only supposed to judge cases with the facts they know about and the law as it applies. Again, 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. Jardinez: Parole Officer Conducts Overbroad Search of Defendant’s iPod

Constitutional Rights, Department of Corrections, Evidence, Exigent Circumstances, felony, Firearm, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

How to distinguish a 5.5th generation 'Enhanced' iPod - Macintosh How To

Good decision.

In State v. Jardinez, the Court of Appeals held that a community corrections officer’s (CCO) review of video on a parolee’s iPod Nano violated the parolee’s constitutional rights because the CCO did not have a reasonable suspicion based on articulated facts that the iPod Nano contained evidence of past, present or future criminal conduct or violations of the parolee’s conditions of release.

The defendant Felipe Jardinez was an parole for Drive-By Shooting and Unlawful Possession of a Firearm Second Degree. He served prison time followed by 18 months of community supervision. The conditions of community custody included requirements to report to his CCO, refrain from possessing controlled substances and refrain from possessing firearms.

On November 3,2011, Felipe lardinez missed a scheduled meeting with his CCO. The CCO called Jardinez. The two scheduled to meet the next day. During the appointment, Martinez asked Jardinez to submit to a urinalysis test. Jardinez admitted that the test would show marijuana use.

The CCO instructed Jardinez to empty his pockets. Jardinez placed an iPod Nano onto a desk. The CCO was interested in the iPod because parolees occasionally take pictures of themselves with other gang members or “doing something they shouldn’t be doing.” When the CCO handled the iPod, Jardinez appeared nervous. Nevertheless, the CCO lacked facts that the iPod video player would show evidence of a crime or violation of the conditions of the defendant’s community custody.

The CCO accessed the iPod. He found a video recorded earlier that morning. The CCO played the video. It showed  Jardinez pumping a shotgun in his bedroom. Jardinez was arrested. Police searched his home and found the shotgun seen in Jardinez’s iPod video.

Jardinez was charged with Unlawful Possession of a Firearm First Degree. Jardinez moved to suppress the evidence obtained through the CCO’s search of his iPod, and all evidence seized as a result of law enforcement officers searching his home as the spoiled fruit of the unlawful viewing of the video on his iPod.

The trial court granted Felipe Jardinez’s motion to suppress. The court concluded that a warrantless search of the iPod would be justified only if the CCO had a reasonable suspicion based on articulated facts that the device contained evidence of past, present or future criminal conduct or violations of the defendant’s conditions of community custody. The case went up on appeal.

At issue was whether the CCO had legal authority to search the content of Jardinez’s iPod when the CCO did not expect the search to yield evidence related to either of the known parole violations, Jardinez’s failure to appear, or his marijuana use.

The Court of Appeals reasoned that unless an exception is present, a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the U.S. Constitution. A trial court may suppress evidence seized from an illegal search under the Exclusionary Rule or the Fruit of the Poisonous Tree Doctrine.

The Court further reasoned that Washington law recognizes that probationers and parolees have a diminished right of privacy that permits a warrantless search based on probable cause. Parolees and probationers have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. Therefore, the State may supervise and scrutinize a probationer or parolee closely.  Nevertheless, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.

RCW 9.94A.631 provides exceptions to the warrant requirement. RCW 9.94A.631(1) reads:

If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Also, the Court based its decision principally upon the Sentencing Guidelines Commission’s comment about RCW 9.94A.631(1). The Commission wrote as its official comment behind the statute:

The Commission intends that Community Corrections Officers 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 Community Corrections Officer upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the Community Corrections Officer believes to have occurred.

Based on the court’s reading of the statute and its counterpart comment, it found RCW 9.94A.631 did not authorize the CCO’s warrantless search of the contents of Jardinez’s iPod. It affirmed the trial court’s suppression of the evidence of Felipe Jardinez’s unlawful possession of a firearm.

My opinion? Good decision. I’ve posted similar blogs stating that CCO’s and probation officers exercise too much power over defendants. This certainly is one of those cases.

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. Button: Public Shaming Sentence Struck

Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Jail, Sentencing, Shaming, Theft, Washington Court of Appeals, , ,

VERY interesting opinion. In State v. Button, the WA Court of Appeals says that a “shaming” sentence for a defendant convicted of is unlawful. More specifically, the Sentencing Reform Act does NOT support a sentencing court’s requirement that a defendant convicted of Theft First Degree must stand on a street corner holding a sign that states, “I stole from kids. Charlotte Button.” 

          

The defendant Charlotte Button was convicted for First Degree Theft for embezzling funds from a high school club. The trial court sentenced her to two months in jail and imposed an additional condition which intended to “send a message to the community.” The court explained the sentencing condition: “Before you begin your jail time, you are going to spend 40 hours standing at the corner of Wishkah and Broadway with a sign that says, ‘I Stole Money From Kida. Charlotte Burton.’ You’re going to do it two hours at a time twice a day from 7:00 to 9:00 in the morning and 4:00 to 6:00 in the afternoon.” Along with the “public shaming condition, the judge also imposed 60 days jail.

Ms. Button appealed the “public shaming” portion of her sentence on the grounds that it violated her Constitutional Rights under the First Amendment and 8th Amendment of the Constitution. In other words, her Free Speech rights were violated and the judge’s sentence was arguably Cruel & Unusual Punishment.

The Court of Appeals decided that although Washington’s Sentencing Reform Act allows a number of sentencing alternatives – including drug treatment for drug offenders and sexual deviance treatment for sex offenders – “public shaming” is not a designated sentencing alternative. “Nor does any other Sentencing Reform Act provision independently authorize the sign-holding condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is no statutory authority allowing the imposition of a sign-holding condition in the first instance.”

The Court did not address Ms. Button’s Constitutional arguments.

My opinion? Good decision. It’s well-grounded in statutory authority (and lack thereof). Sure, the defendant’s actions leading to the conviction were bad. Nevertheless, she paid her debt to society by serving a significant amount of jail (60 days). And I’m sure the court imposed restitution and court fines, as well. 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.