Category Archives: Homicide & Manslaughter

Forensic Genetic Genealogy Is Admissible Evidence At Trial

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How DNA was discovered and the cases it has helped solve

In State v. Hartman  the WA Court of Appeals held a defendant has no privacy interest in bodily fluids that he “abandons” at a crime scene. A defendant also lacks standing to challenge a search of the DNA of relatives that were voluntarily uploaded to a public database.

BACKGROUND FACTS

In 1986, MW, a 12-year-old girl, was raped and murdered in a Tacoma park. The killer left semen on MW’s body, but his DNA did not match that of any suspects or anyone in police databases for the next 30 years.

In 2018, police enlisted Parabon Nanolabs, a DNA technology company, to analyze the killer’s DNA and to upload it into GEDmatch, a consumer DNA database, looking for partial familial matches that would help identify the killer. Police did not secure a warrant to analyze the abandoned DNA or to compare it with DNA in the GEDmatch database.

Parabon learned that several of the killer’s cousins had DNA in the GEDmatch database. Parabon used information from the database and public records to construct family trees. Parabon then directed police to try to obtain a DNA sample from Gary Charles Hartman. Police obtained a discarded napkin containing Hartman’s DNA, and it matched the DNA from semen on MW’s body. The State charged Hartman with first degree felony murder.

Before trial, Hartman moved to suppress the DNA evidence, arguing that Parabon’s comparison of the DNA sample from the crime scene to the GEDmatch database was unconstitutional. He also asserted that the DNA later collected from the napkin directly linking him to the murder was inadmissible as fruit of the poisonous tree. Hartman did not argue below that he had any privacy interest in DNA left at the crime scene, nor did he challenge the collection and testing of DNA from the discarded napkin.

The trial court ruled that Hartman did not have legal standing to challenge the comparison of the DNA from the crime scene to DNA in the GEDmatch database because he did not have a privacy interest in his cousins’ DNA in the database. In addition, Hartman’s relatives had voluntarily uploaded their DNA into the GEDmatch database, and the DNA that Hartman left at the crime scene was abandoned and not private. The trial court denied the motion to suppress. After a bench trial on stipulated facts, the trial court convicted Hartman.

Hartman appealed his conviction. He argues that analyzing the DNA sample from the crime scene and comparing it with the GEDmatch database to look for his relatives’ DNA disturbed his private affairs in violation of article I, section 7 of the Washington Constitution. Thus, he argues that he had standing to challenge the DNA comparison. In oral argument, he asserted for the first time that he has a privacy interest in the DNA from the semen abandoned at the crime scene.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals held there is no privacy interest in commonly held DNA that a relative voluntarily uploads to a public database that openly allows law enforcement access.

“Hartman claims a privacy interest in the segments of his DNA that his relatives had in common with him. But all that police learned from the GEDmatch analysis was the killer’s familial relations, which brought them closer to learning the killer’s identity. And identifying unknown family members is the exact reason that users of consumer databases, like Hartman’s relatives, post their genetic material on those databases.” ~WA Court of Appeals.

The Court also ruled there is no privacy interest in DNA that one abandons at a crime scene.

“Voluntary exposure to the public is relevant to our inquiry and can negate an asserted privacy interest.

Consequently, the Court reasoned that Hartman lost any privacy interest in the semen he left behind or the DNA it contained. Therefore, Hartman’s attempt to challenge any DNA analysis of the semen he left behind on MW’s body fails.

With that, the Court of Appeals affirmed Hartman’s convictions.

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

“Cold-Hearted”

Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Opinion Testimony, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Recording Your Spouse – A Preliminary Guide | Goranson Bain

In  State v. Fleeks, No. 82911-4-I (January 23, 2023), the WA Court of Appeals held that a recorded police interrogation – where the detective referred to the defendant as being “cold-hearted” – was improperly admitted opinion testimony.

FACTUAL BACKGROUND

Nineteen-year-old Mr. Fleeks often sold drugs on the streets of Seattle to make money. On December 3, 2018, Fleeks was in the Pioneer Square neighborhood of Seattle selling drugs. After Fleeks received a text message from an unknown number, one of Fleeks’s regular customers approached him and told him the text message was from Mr. George who wanted to buy some crack cocaine. Fleeks met George and sold him a small amount of crack cocaine.

Unfortunately, a confrontation took place. As a result, George died from a gunshot wound inflicted from Fleeks.

After arrest, the police interviewed Fleeks and he denied any connection with George’s death. When the police showed Fleeks surveillance footage, he continued to deny being the person in the footage. Detective Cooper continued to ask Fleeks to explain the encounter and shooting. Detective Cooper asked whether George was “fucking with you or . . . something like that?” Fleeks continued to deny any involvement. Detective Cooper made the following comment:

“Do you wanna explain anything to me? This, this is probably your last chance to try to make yourself not look so cold-hearted and stuff like that. We have witnesses that put you there, that identified you there. We have those pictures, that’s off a video, dude . . . I, I mean you’re 19 . . . was there an argument was there a disturbance, a fight, anything . . . so do you wanna explain what happened?”

The State charged Fleeks with one count of murder in the second degree, and one count of unlawful possession of a firearm in the second degree.

At trial, Fleeks raised self-defense. The State offered the police interview recording as evidence to prove its case. Defense counsel objected to the jury hearing the interview recording. However, the judge allowed the jury to review the transcript from a portion of the police interview with Fleeks. The jury watched the interview, including the police detective referred to Fleeks as “cold-hearted.”

Robert Fleeks Jr. was convicted as charged. He appealled his conviction on numerous issues. One issue was whether the trial judge improperly allowed opinion evidence of the police detective saying Fleeks was “cold-hearted.”

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals agreed with Fleeks that the officer’s opinion testimony was improper.

The Court reasoned that “Opinion Testimony” is testimony that is “based on one’s belief or idea rather than on direct knowledge of the facts at issue.” Furthermore, witnesses may not testify in the form of opinions about the defendant’s guilt or innocence. Opinions on guilt are improper because they impede the jury’s ability to make an independent determination of the facts. And testimony given by police officers possess an aura of reliability that make them particularly problematic.

“Testimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence, is not improper opinion testimony. Opinion testimony is improper when it comments on the veracity or intent of a witness, tells the jury what decision to reach, or leaves no other conclusion but that a defendant is guilty.” ~WA Court of Appeals

Fleeks argued that the comment was an improper opinion of guilt, specifically, referring to Fleeks as “cold-hearted.” Conversely, the State argued that Detective Cooper was referring to his casual demeanor and unwillingness to cooperate, in conflict with Fleeks’s claim of self-defense. The trial court found the interview admissible:

“We disagree with the trial court. While Detective Cooper’s statement is an observation that Fleeks did not appear remorseful, it improperly commented on Fleeks’s intent and effectually directed the jury to not believe Fleeks’s self-defense theory. Detective Cooper’s opinion that Fleeks should make himself ‘look not so cold-hearted’ could easily appear to the jury as a belief that Fleeks was guilty of murder, not acting in self-defense. This testimony could interfere with the jury’s ability to determine every fact beyond a reasonable doubt. ~WA Court of Appeals

Consequently, the Court of Appeals reversed Fleeks’s conviction on other grounds and remand for a new trial with instructions that the detective’s testimony should be redacted to exclude the “cold-hearted” statement.

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.

“Solicitation” Requires Monetary Value

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H Law Group: Examples of Criminal Solicitation Under California Penal Code 653f

In State v. Valdiglesias LaValle (10/10/22), the WA Court of Appels overturned a conviction for Solicitation  to commit Murder in the First Degree. Here,  the defendant’s statement to her son that they would be “together forever” after the son poisoned his father to death was not a solicitation based on monetary value.

BACKGROUND FACTS

Ms. Valdiglesias LaValle was born and raised in Peru. She met Mr. Grady, who is 25 years older than her, through an online dating application. Grady brought Valdiglesias LaValle to Skagit County where they got married in 2008. During their marriage, they had two children, S.G. and J.G. By 2014, Grady and Valdiglesias LaValle no longer resided together. Grady filed for dissolution in 2015. Following the dissolution, Valdiglesias LaValle was initially awarded custody, and Grady was required to pay her child support. However, in 2019, the court awarded Grady full custody, and Valdiglesias LaValle was ordered to pay child support to Grady. Valdiglesias LaValle was granted four-hour unsupervised weekly visitation with her children.

On June 2, 2020, Grady drove 10-year-old S.G. and eight-year-old J.G. to Valdiglesias LaValle’s residence for a four-hour visitation. S.G. went into Valdiglesias LaValle’s bedroom because S.G. heard her and J.G. talking about “bad stuff” and “rat poison.” S.G. decided to record the conversation.

In short, Valdiglesias LaValle’s persuaded S.G. to administer rat poison to Mr. Grady’s drink. In exchange, Valdiglesias LaValle promised they would be “together forever” after the son poisoned his father Mr. Grady.

Shortly after, Mr. Grady picked up S.G. and J.G. S.G. shared the recording with Grady. Eventually, Child Protective Services and the police department were informed. The State charged Valdiglesias LaValle with Solicitation to commit Murder in the First Degree and Solicitation to commit Assault in the First Degree.

Valdiglesias LaValle argued a 3.6 Motion to Suppress the audio recording and a Knapstad Motion to Dismiss. The court denied both motions. At trial, a jury convicted her on both counts. Valdiglesias LaValle appealed her conviction on arguments that contends that her statement to S.G., that they will be “together forever,” is not a “thing of value” as
provided in Washington’s criminal solicitation statute.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by describing Washington’s criminal solicitation statute:

“A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of a crime, he or she offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed.”RCW 9A.28.030(1) (emphasis added).

The Court emphasized that the term “thing of value” is not defined in the statute or anywhere in the statute.

Next, the Court reviewed the plain language of the Solicitation statute. It stated that the relevant language at issue is the requirement that a person ‘offers to give . . . money or other thing of value’ to engage in the conduct. “Here, the phrase ‘thing of value’ is immediately preceded by the term ‘money,'” said the Court. “If the statute was meant to reach anything of value — which would be extremely broad — there would be no need to distinguish “money” separately from “other thing of
value.”

The Court concluded by saying it is not enough to simply command, encourage, or request another person to engage in specific conduct that would constitute a crime. In light of the above, the term “thing of value” under RCW 9A.28.030(1) contemplates things, tangible or intangible, that have monetary value.

With that, the Court of Appeals reversed Valdiglesias LaValle’s conviction and dismissed the case.

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.

Prosecutor’s Filing Delay Held Unconstitutional

Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Solutions to the burden of backlog of cases - iPleaders

In State v. Stearns, the WA Court of Appeals held that the Prosecutor’s delay in filing charges violated the defendant’s due process rights.

FACTUAL BACKGROUND

In November 2020, a jury found Mr. Stearns guilty of felony murder in the first degree with sexual motivation. The charges arose from a 1988 incident where the victim’s body was discovered at a park.

In 2004, DNA evidence retrieved from the victim and scene connected Stearns to the incident. In 2005, law enforcement interviewed Mr. Stearns. The prosecutor assigned to the case later acknowledged that sufficient probable cause existed to charge Stearns with the murder. However, the proseutor did not file charges until 2017.

By then, multiple eyewitnesses interviewed by police in 1998 passed away during the delay between the State’s development of probable cause and charging. However, the trial court denied Stearns’s pretrial motion to dismiss based on preaccusatorial delay. In January 2020, a jury trial ultimately resulted in a hung jury. The court declared a mistrial.  The State retried Stearns in November 2020. This time, the jury found Stearns guilty as charged.

On appeal, Stearns argued that the lower court’s ruling on preaccusatorial delay deprived him of a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) said that  under State v. Maynard, a court will dismiss a prosecution for preaccusatorial delay if the State’s intentional or negligent delay violates a defendant’s due process rights.

Here, the filing delay actually prejudiced the defendant because a key eyewitness died months after the State filed charges and was unavailable for trial. Furthermore, the State’s reasons for the negligent filing delay were significantly outweighed by the actual prejudice to the defendant.  The prosecutor’s heavy caseload and the defendant’s lengthy incarceration on another case were not valid reasons for the late filing.

The Court of Appeals also reasoned the State violated the fundamental conceptions of justice by failing to file a murder charge with well-developed probable cause for 12 years. This late filing happened despite repeated status inquiries from other investigators and government actors involved in its investigation.

With that, the Court of Appeals reversed Stearn’s conviction and dismissed the case with prejudice.

Some legal insight is necessary. Pre-accusation delay motions (hereinafter “Due Process Motions”) are common among cold-case murders. For instance, investigators may not have enough evidence to legally effectuate an arrest at the time of the murder. The case goes “cold” until years later when DNA evidence links the original suspect to the murder. Due Process motions are brought to protect a criminal defendant for unfair delays which makes putting forth a defense impossible. To establish a due process violation a defendant must demonstrate prejudice. That is, the defendant must show that the pre-indictment delay impaired his or her ability to defend against the charge.

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

The Limits of Expert Witness Testimony

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In State v. Caril, the WA Court of Appeals held that a lower trial court did not violate the defendant’s Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

BACKGROUND FACTS

Mr. Caril was convicted of second degree murder. He asserts he was in a state of compromised mental health when he stabbed and killed a person.

During the night of June 22-23, 2017, Mr. Ross, Ms. Nguyen, and Mr. Pimenthal enjoyed a night out with a group of friends. In the early morning hours, they obtained take-out meals and sat on the curb outside the restaurant to eat. From across the street, an individual shouted, “Shut the fuck up,” and threw a two-liter soda bottle in their direction. It landed by their feet. Ross shouted back that throwing the bottle was a “good way to get your ass kicked.”

Ross observed the individual – later identified as the defendant Mr. Caril – walk across the street. He walked towards the group brandishing a knife. Ross told everyone to “run” and that the approaching individual had a knife. Nguyen and Ross withdrew. Unfortunately, Pimenthal was not able to do so in time. While running away, Ross saw Caril stab Pimenthal. Nguyen saw Caril “punch” Pimenthal three times in the chest. Mr. Hussen, who observed these events from his car nearby, exited his vehicle and shouted at Caril. Hussen asked if Carilwas “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if he “wanted some too.” Pimenthal died from his injuries.

Caril was charged with first degree murder. He was later charged with an additional count of second degree murder.

At trial, Caril, who suffers from paranoid schizophrenia, called an expert psychologist. The expert testified that Caril lacked the capacity to form criminal intent at the time of the incident. The trial court allowed this testimony. However, the trial judge prohibited Caril’s expert witness from testifying to hearsay statements from another psychologist’s report that the expert relied on. The court reasoned that the excluded statements concerned the collateral issues of Caril’s competency to stand trial and potential future need for civil commitment.

Caril was acquitted of first degree murder, but the jury found him guilty of the lesser included crime of second degree murder (intentional murder) with a deadly weapon. Caril was found guilty of second degree murder (felony murder) with a deadly weapon on count II.

On appeal, Caril argued the trial judge abused his discretion and violated his Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

COURT’S ANALYSIS & CONCLUSIONS

The Court Appeals said that under the Sixth Amendment, a defendant has a constitutional right to present a defense. This right is not, however, absolute. It may bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible.

Furthermore, an expert witness is permitted to base an opinion on facts or data that are not admissible in evidence. Ths can happen under ER 703 if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Consequently, the trial court has discretion to determine the extent to which the expert may convey this information.

Here, the Court of Appeals reasoned that the hearsay statements were relevant to explain the basis for the expert’s opinion. However, it further reasoned that admitting them could confuse or mislead the jury. This was because the hearsay statements concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low. They were inadmissible as substantive evidence and relevant only for the purpose of providing additional context for the expert’s opinion.

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

2021 Crime Report: Violent Crime Up as Washington State Sees Decrease in Police Officers

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Despite Crime Rate Decrease, Majority of Americans Think It Is Increasing

Journalist Adel Toay for King5.com says that violent crime has increased in Washington. According to a crime report from the Washington Association of Sheriffs and Police Chiefs (WASPC), violent crimes and murders increased while the number of police officers available to respond to incidents decreased in 2021.

“This is just very specific data, about crime trends, about our staffing level, about a couple of things that sort of stand out. But the numbers are all there. We’re very transparent. We wanted to get this out to everybody so that they have that information within their communities,” ~Steven Strachan, executive director of WASPC

According to the report, violent crime overall, which includes murder, aggravated assault, robbery and rape, increased by 12.3% in 2021.

There were 325 murders in 2021, an increase of 5.9% over 2020, following a 47% increase the year before. Strachan said this is the highest number of murders recorded since WASPC began collecting this data in 1980.

Hate crimes like Malicious Harassment in the state increased by 26.5% in 2021 with the most frequent offenses being intimidation and destruction of property.

Total crime overall is statistically down slightly, including a 78.8% decrease in identity theft and fraud from 2020, largely due to the huge spike in unemployment fraud during the pandemic. Other factors contributing to the statistical downward trend include a 60.9% decrease in drug offenses and a 73.6% decrease in drug arrests, due to a change in state laws.

“This is predominantly due to the Blake decision in 2021, which completely changed the ability to charge a criminal offense for personal possession of any drug,” said Strachan. In February 2021, the Washington State Supreme Court ruled the state’s simple drug possession crime statute was unconstitutional and voided it.

THE LOSS OF POLICE OFFICERS

Washington state lost nearly 500 police officers statewide in 2021 as the state’s population grew more than the population of Everett, according to the report. The number of commissioned law enforcement officers decreased 4.4%. The per capita rate of law enforcement officers fell to 1.38 per 1,000 statewide.

“When the staffing is down, the numbers are up,” said Strachan.

Strachan said it is the lowest per capita rate of officers the state has seen since WASPC began tracking this data in 1980, and it’s the lowest in the nation. The national average per capita rate for officers is 2.33 officers per 1,000, according to the FBI.

“Right now, a lot of agencies are treading water. Not every single one. Not every single agency is in a staffing crisis. Many are. These things are problems with solutions, and that is to support good policing and to recognize that public safety is important.”~Steven Strachan, executive director of WASPC

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.

Offender Scores Include Bail Jumping Even When the Underlying Conviction Was Dismissed Under State v. Blake

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Felony Sentencing Guidelines | California Felony Attorney

In State v. Paniagua, the WA Court of Appeals held that convictions for Bail Jumping are appropriately included in the offender score even when the offender failed to appear at a scheduled hearing for a pending charge of Blake-related Drug Offense.

FACTUAL BACKGROUND

This appeal considered one of many consequences attended to the Washington Supreme Court’s landmark decision in charge of State v. Blake. The decision held Washington’s possession of a controlled substance criminal statute unconstitutional. In turn, Washington courts have removed, from offender scores, earlier convictions for possession of a controlled substance.

This appeal travels further down the path and asks whether a court should remove, from the offender score, a former conviction for bail jumping when the offender failed to appear at a scheduled hearing while on bail pending charges for possession of a controlled substance.

Victor Paniagua only challenges his sentence for his 2018 convictions for Homicide and other crimes. The relevant facts begin, however, with earlier convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful possession of a controlled substance. In 2011, the State again convicted Paniagua with possession of a controlled substance and the additional charge of bail jumping. The bail jumping charge arose from Paniagua’s failure to appear at a court hearing on the 2011 possession charge.

In June 2018, a jury found Victor Paniagua guilty of second degree murder, second degree assault, unlawful possession of a firearm, and witness tampering. The trial court calculated Paniagua’s offender score at 8 for the murder and assault charges. It also calculated a 7 for the unlawful firearm possession and witness tampering charges. The offender score calculation included one point each for the 2007 and 2011 possession of a controlled substance convictions and one point for the 2011 bail jumping conviction. As a result, the
court then sentenced Paniagua to 453 months’ total confinement.

After the issuance of State v. Blake, Mr. Paniagua requested resentencing. He argued the superior court should resentence him and reduce his offender score by three points. Ultimately, the superior court deducted only two points from Paniagua’s offender score. The superior court resentenced Paniagua to 412 months’ total confinement.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that State v. Blake held that Washington’s drug possession statute violated the due process clause. The statute penalized one for passive, innocent, or no conduct without requiring the State to prove intent.

“The Washington Supreme Court also did not address, in State v. Blake, the retroactivity of its decision,” said the Court of Appeals. “Nevertheless, the State and other courts have operated on the assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is and has always been a legal nullity.”

Next, the Court of Appeals decided whether the bail jumping conviction was invalid on its face. When a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its face. Here, however, the State did not convict Mr. Paniagua of a nonexistent crime when convicting him of bail jumping. “The crime remains in existence today,” said the Court of Appeals. “The conviction is not facially invalid.”

Next, the court raised and dismissed Paniagua’s arguments that the State convicted him of bail jumping while facing charges brought pursuant to an unconstitutional statute:

“Still, he cites no decision supporting the proposition that being convicted or held, under an unconstitutional criminal statute, renders escaping from jail or bail jumping permissible. To the contrary, under the universal rule, the unconstitutionality of a statute under which the defendant was convicted or charged does not justify escape from imprisonment . . . We find no decision addressing bail jumping when facing charges under an unconstitutional statute.” ~WA Court of Appeals.

With that, the Court of Appeals affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for bail jumping in his offender score and affirmed his resentencing.

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.

Discarded DNA Admissible

Bellingham Defense Attorney, DNA, Evidence, felony, Homicide & Manslaughter, Kidnapping, law enforcement, Mount Vernon Criminal Defense Attorney, Rape, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Deliberate Cruelty

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Burning Red Flare Held Up At Night by RockfordMedia | VideoHive

In State v. Burrus, the WA Court of Appeals held there was sufficient evidence the defendant demonstrated deliberate cruelty to the victim when he poured gasoline on the victim, lit a flare and set the victim on fire.

BACKGROUND FACTS

Mr. Burrus poured gasoline on victim Mr. Busch and threw a lit flare at him, causing him to catch fire. Busch suffered second and third degree burns on 30 percent of his body. The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty. The jury found Burrus guilty as charged.

Based on the jury’s finding of deliberate cruelty, the trial court imposed an exceptional  upward sentence. The trial court found that the aggravating factor of deliberate cruelty was a compelling reason to justify an exceptional sentence and imposed a sentence of 300 months.

On appeal, Mr. Burrus argued the the trial court erred in imposing an exceptional sentence based on the jury’s finding of deliberate cruelty.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals stated that under the Sentencing Reform Act, generally, a court must impose a sentence within the standard range. A court may depart from the guidelines and impose a higher sentence if it finds substantial and compelling reasons. The existence of an aggravating factor may support an exceptional sentence.

Next, the court addressed the issue of whether the lack of comparative evidence meant there was insufficient evidence to supported the jury’s finding of deliberate cruelty.

“Burrus says insufficient evidence supports the jury’s finding of deliberate cruelty,” said the Court of Appeals. “He contends that because the State failed to provide comparative evidence of typical attempted first degree murders, the jury had insufficient evidence to determine whether the facts here were atypical.”

However, the Court of Appeals disagreed with Burrus and held that the State is not required to provide the jury with examples of typical attempted first degree murders:

“It is within a jury’s capability, based on their common sense and common experience, to determine that dousing a person in gasoline, lighting them on fire, and then leaving them to burn is deliberately cruel.” ~WA Court of Appeals

Consequently, the Court also reasoned that Mr. Burrus cannot assert a vagueness challenge to the deliberate cruelty aggravator, either.

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.

 

FBI Releases 2019 Hate Crime Statistics

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Pie chart depicting breakdown of motivations of bias-motivated crimes in the Hate Crime Statistics, 2019 report.

In a press release issued today, the FBI gave Hate Crime Statistics, 2019, which is the Uniform Crime Reporting (UCR) Program’s latest compilation about bias-motivated incidents throughout the nation. The 2019 data, submitted by 15,588 law enforcement agencies, provide information about the offenses, victims, offenders, and locations of hate crimes.

Law enforcement agencies submitted incident reports involving 7,314 criminal incidents and 8,559 related offenses as being motivated by bias toward race, ethnicity, ancestry, religion, sexual orientation, disability, gender, and gender identity.

Victims of Hate Crime Incidents

  • According to the report, there were 7,103 single-bias incidents involving 8,552 victims. A percent distribution of victims by bias type shows that 57.6% of victims were targeted because of the offenders’ race/ethnicity/ancestry bias; 20.1% were targeted because of the offenders’ religious bias; 16.7% were victimized because of the offenders’ sexual-orientation bias; 2.7% were targeted because of the offenders’ gender identity bias; 2.0% were victimized because of the offenders’ disability bias; and 0.9% were victimized because of the offenders’ gender bias.
  • There were 211 multiple-bias hate crime incidents, which involved 260 victims.

Offenses by Crime Category

  • Of the 5,512 hate crime offenses classified as crimes against persons in 2019, 40% were for intimidation, 36.7% were for simple assault, and 21% were for aggravated assault. Fifty-one (51) murders; 30 rapes; and three offenses of human trafficking (commercial sex acts) were reported as hate crimes. The remaining 41 hate crime offenses were reported in the category of other.
  • There were 2,811 hate crime offenses classified as crimes against property. The majority of these (76.6%) were acts of destruction/damage/vandalism. Robbery, burglary, larceny-theft, motor vehicle theft, arson, and other offenses accounted for the remaining 23.4% of crimes against property.
  • Two hundred thirty-six (236) additional offenses were classified as crimes against society. This crime category represents society’s prohibition against engaging in certain types of activity such as gambling, prostitution, and drug violations. These are typically victimless crimes in which property is not the object.

In Washington, Malicious Harassment is a crime you may face in addition to any other existing charges if the prosecution has deemed that there is sufficient cause to believe that your actions were motivated by personal bias or bigotry. Malicious Harassment is a Class C Felony. The statute reads:

“(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;

(b) Causes physical damage to or destruction of the property of the victim or another person; or

(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances. For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.”

The jury must put themselves into the shoes of what the statute defines as a reasonable individual, rather than their own mindset.  From a defense standpoint, the prosecutor’s burden of proof may be difficult to properly enact if the jurors are not members of the group that the alleged hate crime has offended. Moreover, not all crimes that occur between people of different races and nationalities are necessarily hate crimes.

Please contact my office if you or a loved one is currently facing charges for a hate crime, and/or Malicious Harassment. Defending against these allegations is difficult, and there is very little room for negotiation. Hiring competent and experienced defense counsel is your first and best step towards justice.