Category Archives: Firearm

State v. Allen: Prosecutor Commits Misconduct With Phrase, “Should Have Known.”

Accomplice, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, police, Prosecutorial Misconduct, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Prosecutorial Misconduct in Texas: Right Now, it's an Appellate Fight - Dallas Justice Blog

In State v. Allen, the WA Supremes ruled that the Prosecuting Attorney committed prejudicial misconduct by misstating the standard upon which the jury may convict an accomplice.

This case involves the Lakewood police officer shootings.

The defendant Mr. Allen was friend and co-worker of Maurice Clemmons, who fatally shot four police officers in a coffee shop on November 29, 2009. Mr. Allen’s involvement transpired on the days leading up to the shooting.

This tragic story began in May 2009 when officers responded to reports that Clemmons was throwing rocks through his neighbors’ windows. Clemmons responded violently when officers arrived at the scene, and he was arrested for punching officers. He posted bail in November 2009, the month of the shootings.

Shortly after his release, Clemmons attended Thanksgiving dinner at his aunt’s house, where he expressed animosity toward the police. Specifically, he announced that if the police arrived to look for him, he would kill them and then go across the street to the elementary school and commit further acts of violence. Clemmons brandished a handgun while he described these acts. Allen, who was a friend and employee of Clemmons, was present at that dinner.

Three days later, Clemmons contacted Allen and told him they were going to wash the company truck. With Allen driving, Clemmons directed him to a car wash near a coffee shop in Lakewood. Upon arriving at the car wash, Allen parked the truck, got out, and walked across the street to a minimart.

During that time, Clemmons also left the car wash and entered the coffee shop, where the shootings occurred. When Allen returned to the truck, Clemmons appeared and told Allen that they had to leave. Allen claimed he drove only a few blocks until he left the truck upon discovering Clemmons was wounded. Allen also claimed that he did not know Clemmons was going to commit the murders.

Clemmons eventually ended up at his aunt’s house, and the truck was abandoned in a nearby parking lot. A few days later, Clemmons was killed by a Seattle police officer. Allen was arrested shortly afterward.

Allen was charged with four counts of Aggravated Murder in the first Degree. During trial, several spectators wore T -shirts that said, “‘You will not be forgotten, Lakewood Police,”‘ followed by the names of the four murdered officers. Allen objected to these T-shirts and asked that the shirts be covered. The trial court denied Allen’s motion.

At closing argument, the State was required to prove that Allen had actual knowledge that Clemmons would commit the murders. During closing argument, the prosecuting attorney initially stated the correct definition of “knowledge” as it was used in the jury instruction. However, immediately afterward, the prosecuting attorney stated that “for shorthand we’re going to call that ‘should have known.'” Also, the prosecuting attorney went on to repeatedly and improperly use the phrase “should have known” when describing the definition of “knowledge.”

The prosecuting attorney also presented a slide show simultaneously with his closing argument. This slide show repeatedly referred to the incorrect “should have known” standard. One slide even stated, “You are an accomplice if: … you know or should have known,” with the words “should have known” in bold. The prosecuting attorney made several more “should have known” comments in rebuttal argument.

The jury received instructions that correctly stated the law regarding “knowledge.” Particularly, instruction 9 said the following:

A person knows or acts knowingly or with knowledge with respect to a fact or circumstance when he or she is aware of that fact or circumstance. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

 Allen was convicted of four counts of Murder in the First Degree. Based on the aggravating circumstance, the trial court imposed an exceptional sentence of 400 years.

ISSUES ON APPEAL

The Court granted review on three issues: (1) Did the prosecuting attorney commit prejudicial misconduct by misstating the standard upon which the jury could convict Allen? (2) Does the “aggravator” found in RCW 9.94A.535(3)(v) apply to a defendant charged as an accomplice? (3) Was Allen prejudiced when spectators at trial wore T -shirts bearing the names of the murdered officers?

1. DID THE PROSECUTOR COMMIT MISCONDUCT?

The court ruled the Prosecutor committed prejudicial misconduct by misstating the standard upon which the jury could find Allen guilty. Here, the prosecuting attorney repeatedly misstated that the jury could convict Allen if it found that he should have known Clemmons was going to murder the four police officers.

The Court reasoned that, for example, the prosecuting attorney stated that “under the law, even if he doesn’t actually know, if a reasonable person would have known, he’s guilty.” As noted above, the “should have known” standard is incorrect; the jury must find that Allen actually knew Clemmons was going to murder the four police officers. Consequently, the Court concluded that the remarks were improper.

Furthermore, the improper comments prejudiced the defendant. First, the Prosecutor misstated a key issue of the case – knowledge. Second, the misstatement of law was repeated multiple times. Repetitive misconduct can have a “cumulative effect.” Third, the trial court twice overruled Allen’s timely objections in the jury’s presence, potentially leading the jury to believe that the “should have known” standard was a proper interpretation of law.

Fourth, and perhaps most important, the record reveals that the jury was influenced by the improper statement of law during deliberations. Finally, the misconduct by the State was particularly egregious. Based on the foregoing factors, the Court found that there was a substantial likelihood that the Prosecutor’s misconduct affected the jury verdict and thus prejudiced Allen.

 2. DOES THE “AGGRAVATOR” SENTENCING ENHANCEMENT APPLY TO AN ACCOMPLICE?

The Court answered “Yes” to this question. Here, the court sentenced Allen to an exceptional sentence based on the sentencing aggravator found in RCW 9.94A.535(3)(v). That statute contains no express triggering language automatically authorizing an exceptional sentence for accomplices. Therefore, Allen’s own misconduct must form the basis upon which the exceptional sentence applies.

The operative language of the statute here allows the court to sentence Allen above the standard range if the offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim’s status as a law enforcement officer is not an element of the offense.” Consequently, an exceptional sentence under RCW 9.94A.535(3)(v) may be imposed on remand if the jury finds the required elements based on Allen’s own misconduct.

3. DID THE SPECTATORS WEARING T-SHIRTS IN THE COURTROOM PREJUDICE ALLEN’S CASE?

The court decided that, based on the limited information in the record, it was unlikely that the t-shirts were inherently prejudicial. The T-shirts bore a message that said, “‘You will not be forgotten, Lakewood Police”‘ followed by a list of the victims’ names. The court said this message does not advocate for a message of guilt or innocence. Rather, the shirts were merely a silent showing of sympathy for the victims. Contrary to Allen’s arguments, the mere presence of words does not make a spectator display inherently prejudicial.

In conclusion, the prosecuting attorney committed prejudicial misconduct by misstating the proper standard upon which the jury could find Allen acted with knowledge. Based on that, the WA Supreme Court reversed the Court of Appeals and remanded for a new trial.

My opinion?

The shootings were exceptionally tragic. These officers left friends and family in the wake of their senseless death. That said, the Prosecutor in this case clearly committed misconduct. I’ve been in jury trials where Prosecutors will bend and stretch the the law when it comes to whether a defendant had knowledge they were committing a crime. Similar to the Prosecutor in this case, they’ll say “Well, the defendant should have known they were committing a crime.”

This is an ABSOLUTE misstatement of the law. “Knowing” and “Should Have Known” are two very, very different levels of understanding. Here, saying Mr. Allen “Should Have Known” that Clemmons would commit murder implies that Mr. Allen had a legal duty to know what Clemmons was thinking about before committing the heinous murders he committed. That’s wrong, and an improper statement of the law.

 Again, I extend my deepest condolences to the families and friends of the police officers who lost their lives. 

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. 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. 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. 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. Saggers: When Officers Exceed the Scope of Searches Under Terry v. Ohio

911 Call, Assault, Constitutional Rights, felony, Firearm, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Terry Stop, Washington Court of Appeals, Washington State Patrol, , ,

Terry V. Ohio (@ohio_terry) | Twitter

In State v. Saggers, the WQA Court of Appeals held that police officers exceed the scope of a Terry Stop when  an informant’s tip is questionably (un)reliable and the exigency of the alleged serious offense has dissipated.

Police arrived at the home of defendant Andrew Saggers because a 911 call indicated an altercation occurred outside his home involving a shotgun. The 911 call was placed from a payphone. Although the caller provided his name, he was unknown to the police. When police went to the payphone, the caller was gone and the phone was hanging from the cord. The police contacted Mr. Saggers.

Although the present situation was neither dangerous nor life-threatening, the police inquired whether Mr. Saggers had a shotgun in the house. He admitted, “Yes.” The police searched his home and found the gun. Mr. Saggers was subsequently charged with Unlawful Possession of a Firearm. At trial, he was found guilty of the charges. The case went up on appeal.

The Court of Appeals held the police officers exceeded the scope of a search under Terry v. Ohio because the informant tip was unreliable and the emergency of any life-threatening situation was already passed. For those who don’t know, Terry v. Ohio is a landmark decision by the U.S. Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him or her without probable cause to arrest, if the police officer has a reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has a reasonable belief that the person “may be armed and presently dangerous.

Here, however, the Court of Appeals ruled that although it is understandable that officers faced with a 911 call like this one would rightfully pursue an investigation, the 911 Call itself was unreliable. Additionally, the danger had already passed by the time officers arrived at Sagger’s house. Consequently, the officer exceeded the scope of a valid search under Terry v. Ohio. Based on these findings, the Court of Appeals reversed Saggers’ conviction.

Good 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.

Unlawful Frisking Violates Constitutional Rights

Constitutional Rights, Drug Offenses, felony, Firearm, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, Washington Supreme Court, , ,

Austin PD defends officer who stopped and frisked woman in video

Good case. In State v. Russell, the WA Supreme Court held that the warrantless search of a small container found on the defendant’s body exceeded the proper scope of a pat-down search under the guise of a “protective frisk for weapons” during a Terry Stop.

The defendant Mr. Russell was stopped for violating several minor traffic laws. The officer recognized Russell from a prior stop. Although the Mr. Russell told officers he was not armed, he did, in fact, have a small pistol in his pocket. The officer frisked Mr. Russell for weapons. The officer felt a small box in Russell’s pants. The box was did not weigh any significant amount, and the officer had no idea whether the box contained a weapon. The officer opened the box. It contained a syringe filled with methamphetamine. The defendant was arrested for Possession of Meth.

The trial court granted Mr. Russell’s motion to suppress the evidence and dismiss the case. However, the WA Court of Appeals reversed the trial court’s decision on appeal. Eventually, the case found its way to the WA Supreme Court.

The WA Supreme Court ruled that although the initial protective frisk was permissible, the officer violated Russell’s constitutional rights when he removed a small container from his pocket and searched it without a warrant. The officer admitted that the container’s contents weighed only a fraction of what a pistol weighs. Because the officer did not have a reasonable belief that the container housed a gun, the warrantless search was not justified.

Furthermore, the Court reasoned that any threat to the officer’s safety ended when he took control of the container. He did not have authority to search it while investigating traffic infractions. Finally, the WA Supreme Court  held that the search was not justified on the basis of consent because the State did not show that Russell consented to the search. For these reasons, the WA Supremes reversed the Court of Appeals.

My opinion? Great decision. Under the law, officers can only search for “hard and sharp” objects which might be used as weapons. Anything else they find is “fruit of the poisonous tree” under an unlawful search. 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. Lindsay: When Attorneys Act Unprofessionally

Assault, Burglary, Firearm, Kidnapping, Prosecutorial Misconduct, Robbery, Rules of Professional Conduct, Theft, Washington Supreme Court, , ,

I'll Have Your Rear End Sanctioned': Insurance Defense Lawyer Spars With Plaintiff, Opposing Counsel | Daily Business Review

In State v. Lindsay, the WA Supreme Court reversed a defendant’s conviction because the lawyers engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout the proceedings in this case.

The defendants were charged with Robbery, Burglary, Kidnapping, Assault and Theft of a Firearm. The jury convicted them of some, but not all counts. The WA Supreme Court reasoned that although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. In short, a prosecutorial misconduct involves a two-part inquiry: (1) whether the prosecutor’s comments were improper, and (2) whether tjhe improper comments caused prejudice.

The court noted that although the conflict from both the Prosecutor and Defense Counsel seemed mutual and both attorneys were at fault, Prosecutors are held to a higher standard of conduct. Additionally, some of the Prosecutor’s hijinks at Closing Argument required reversal of the conviction. For example, the Court noted that Prosecutors may not refer to defense counsel’s closing argument as a “crock.” These comments impugn Defense Counsel, and imply deception and dishonesty. The Prosecutor also said that the defendant Holmes’s testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard.”

Additionally, the Prosecutor’s attempts at coupling the jigsaw puzzle analogy with a percentage of missing pieces in the defense attorney’s case was also reversible error. Moreover, comparing the reasonable doubt standard to the decision made at a cross-walk is error. In addition, telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is also improper.

A prosecutor’s stating that a witnesses’ testimony is “the most ridiculous thing I’ve ever heard” is an improper expression of personal opinion as to credibility. Finally, a prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings.

My opinion? The WA Supremes made a good decision. Practicing law is hard. Conducting jury trials is very hard. Now imagine dealing with another attorney’s unprofessional conduct during trial. Unbelievable! Yes, these instances of misconduct happen. I speak from experience when I say it’s easy to get sucked into malicious and negative behavior, especially when attorney’s advocate in the heat of battle.

Nevertheless, Section 3.4 of Washington’s Rules of Professional Conduct require that attorneys be civil toward one another and the tribunal. It’s incredibly difficult for judges to analyze the legal issues over the furor of shouting attorneys. And it hurts the credibility of the entire legal institution when our citizens see us behaving badly. My heart goes out to the lawyers involved in the case. Hopefully, they worked out their differences.

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.

Are Washington’s New Proposed DUI Laws Unconstitutional?

Blood Test, Constitutional Rights, Department of Licensing, Drug Offenses, DUI, felony, Firearm, Ignition Interlock Device, law enforcement, Legislation, marijuana, misdemeanor, police, Washington State Patrol, , ,

9 Things You Should Know If You're a Repeat DUI Offender

Gov. Jay Inslee shall sign into law a measure to increase monitoring of motorists who repeatedly drive under the influence.

Under the revised bill to be signed this morning in Tacoma, drivers charged with a second impaired driving offense would face mandatory arrest AND booking in jail AND have an interlock device installed on their vehicles within five days of being charged. The state would also begin a pilot program to conduct daily alcohol monitoring on a person convicted twice under the DUI law.

Finally, the State will give counties and cities more money to prosecute and punish DUI offenders quicker. The law, sparked by tragic accidents earlier this year, is a scaled back version of an initial plan that would have increased minimum jail times for offenders.

My opinion? More and more, we are witnessing the erosion of our rights when it comes to DUI legislation and enforcement. There are four basic legal issues when it comes to DUI: (1) whether the stop conducted by the police was lawful, (2) whether the officer had enough evidence to arrest for DUI, (3) whether the defendant was informed of the Implied Consent law, and (4) whether the defendant’s breath test was over .08 and/or whether the defendant refused the test. These four basic issues bring LOTS of sub-issues; which is the stuff of good lawyering and effective pretrial motions to suppress and/or dismiss the case.

Most people don’t know that DUI charges bring separate actions from both the Department of Licensing (DOL) and the City/State Prosecutor. The DOL will try revoking or suspending your license. Following that, they’ll order defendants to obtain an Ignition Interlock Device (IID) and an Ignition Interlock Device License (IIDL) if the defendant wants to continue driving.

To combat this, defendants are entitled to a DOL hearing if they want to stop the DOL from suspending/revoking the license. The hearing costs $375.00. A good attorney will brief the legal issues and request a hearing before the DOL’s Hearing Examiner in order to persuade the Hearing Examiner to NOT suspend/revoke the defendant’s license.

Problematically, it appears Inslee’s new DUI legislation circumvents the DOL process altogether. It appears a defendant’s car will be automatically installed with an IID 5 days after arrest. Defendants will be closely monitored while their case is pending. In all likelihood, they’ll be forced to take time out of their day to appear before their probation officer and succumb to UA and/or portable breath testing. All of these actions assume the defendant is guilty. They violate the “innocent until proven guilty” standard.

Also, the bill’s enforcement of pretrial orders for IIDs violates State v. Rose, 146 Wn.App. 439 (2008). That case held government programs which require the defendant to pay fees/costs before conviction are unconstitutional. Additionally, these provisions may violate Art. 1 Section 22 of the WA Constitution by requiring advancement of money before conviction.

Now, more than ever, it’s imperative to find a competent defense attorney to help maneuver the pitfalls of our increasing anti-DUI legislation.

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.

Patrol Car Video in Fatal Shooting of Woodcarver Released

Firearm, Homicide & Manslaughter, Uncategorized, , ,

Police video documents fatal encounter between officer and woodcarver | The Seattle Times

 Patrol car video released from an officer’s fatal meeting with John T. Williams does not show the shooting, but includes audio of their interaction. Officer Ian Birk, 27, shot Williams Aug. 30 at Boren Avenue and Howell Street. Williams died at the scene.

Birk yells “Hey!” three times to Williams, then yells three times to “Put the knife down.”

The first shot appears to be fired five seconds from when Birk first told Williams to put the knife down. Court documents show the knife was closed when photographed by investigators.

Less than a minute after the shooting, before backup officers arrive, Birk’s heard telling a woman Williams had a knife and wouldn’t drop it. He tells backup officers Williams had the knife open and was carving.  Williams’ knife had a 3-inch blade — one that is legal under the Seattle Municipal Code. Hundreds of people protested the shooting in September. Critics have said Williams was deaf in one ear and was not presenting a threat to Birk.

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. Werner: Who Let The Dogs Out?

911 Call, Animal Abuse, Assault, Constitutional Rights, felony, Firearm, Jury Trial, Self-Defense, Washington Court of Appeals, , ,

HOA Senior Communities Should Ban Vicious Dogs | YourHub

In State v. Werner, the WA Supreme Court held that a defendant is entitled to a jury instruction on self-defense in the prosecution for first degree assault after accidentally discharging a firearm when confronted by a neighbor’s pack of dangerous dogs.

“Victim” Daniel Barnes moved to the property next door to to defendant Gary Werner. Almost immediately, Werner and Barnes  began an ongoing property dispute concerning a shared easement.  Barnes kept seven dogs on Barnes’s property, including a Rottweiler and pit bulls. At least  three times before the incident giving rise to criminal charges, the dogs came onto Werner’s property and acted menacingly, barking and circling Werner. Werner started carrying a handgun with him on the property because he was afraid of the dogs.

The property dispute  intensified.  On the day of the incident, Werner was on his property in the easement area when one of Barnes’s pit bulls approached him, baring its teeth. Werner noticed six other dogs with the pit bull, including the Rottweiler and other pit bulls.  The dogs started circling Werner.  He pulled out his pistol, thinking he could scare the dogs, and started yelling for Barnes to call off the dogs.  Werner panicked and called 911 on his cell phone, but due to his arthritis, the gun went off, discharging into the ground.  The police were contacted.

The State charged Werner with Assault First Degree and Malicious Harassment. The jury acquitted him of the Malicious Harassment charge but found him guilty of Assault First Degree.  He appealed.  The case ended up before the WA Supremes.

The Court reviewed the law on self-defense.  “To prove self-defense, there must be evidence that (1) the defendant subjectively feared that he was in imminent danger of death or great bodily harm; (2) this belief was objectively reasonable; [and] (3) the defendant exercised no greater force than was reasonably necessary.” Callahan, 87 Wn. App. at 929 (citation omitted).

The Court reasoned that here, Werner stated that he was afraid. That fear was arguably reasonable, given that he was facing seven snarling dogs, including several pit bulls and a Rottweiler.  Pursuant to State v. Hoeldt, 139 Wn. App. 225, 160 P.3d 55 (2007), a pit bull can be a deadly weapon under RCW 9A.04.110(6). There is evidence that Barnes’s friend refused requests to call off the dogs. By that conduct, Werner could reasonably have believed that Barnes’s friend personally posed a threat through the agency of a formidable group of canines that were under his control.

As to the firing of the weapon, the WA Supremes believed Werner’s accounting that it was an accident.  They found sufficient evidence of both accident and self-defense to warrant instructing the jury on self-defense.  “Since the outcome turns on which version of events the jury believed, the failure to give a self-defense instruction prejudiced Werner.” Accordingly, the WA Supremes reversed Werner’s conviction.

My opinion?  Good decision.  A pack of wild dogs surrounding and growling at you definitely warrants self-defense.  That’s a no-brainer!  The “victim” is lucky none of his dogs were killed.

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.