Category Archives: Homicide & Manslaughter

The Limits of Expert Witness Testimony

Bellingham Defense Attorney, Diminished Capacity, Expert Testimony, felony, Hearsay, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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

Assault, Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Robbery, Sex Crimes, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

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

Assault, Bail Jumping, Bellingham, Drug Offenses, Firearm, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

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, , , , ,

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

Bellingham Defense Attorney, Deliberate Cruelty, Exceptional Sentencing, felony, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

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

Arson, Assault, Bellingham Defense Attorney, Burglary, Drug Offenses, Federal Crimes & Prosecutions, felony, Hate Crimes, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Promoting Prostitution, Race & Law, Rape, Robbery, Sex Crimes, Skagit County Criminal Defense, Studies, Theft of Motor Vehicle, Whatcom County Criminal Defense, , , ,
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.

Right to Present a Defense

Bellingham Defense Attorney, Constitutional Rights, ER 401, ER 402, ER 403, Evidence, felony, Firearm, Homicide & Manslaughter, Methamphetamine, Mount Vernon Criminal Defense Attorney, Self-Defense, Sixth Amendment, Skagit County Criminal Defense, Toxicologist, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

In State v. Jennings, the WA Court of Appeals held the trial court’s exclusion of a shooting victim’s toxicology report indicating the victim had methamphetamine in his body at the time of his death did not violate the defendant’s constitutional right to present a defense.

BACKGROUND FACTS

On the date of the incident, the defendant Mr. Jennings accompanied his friend Mr. Redman to get Redman’s car from a mobile home in Puyallup, Washington. Redman had been living there, but had recently been kicked out. Drug activity occurred there. Jennings was there to defuse any hostilities between Redman and others at the house. Jennings armed himself with bear spray and a gun.

When they arrived, Jennings was on high alert. He knew violent events had recently occurred there. His friend Mr. Redman got into an argument with Mr. Burton, an individual at the house. Redman had his gun out. Jennings was familiar with the behavior of people who consumed methamphetamine. He realized that both Redman and Burton were high on methamphetamine and acting aggressively.

Burton and Redman argued about Redman’s car and then began to scuffle, wrestling in the foyer of the house. Jennings sprayed his bear spray at them to break up the fight. Burton then turned around and started walking toward Jennings, who backed up. Jennings believed Burton had Redman’s gun.

Jennings feared for his life. He was afraid Burton was reacting violently because he was high on methamphetamine. Jennings fired his gun and hit Burton twice. Burton died at the scene shortly after the shooting and before the ambulance arrived.

Jennings was arrested the next day. He was charged with second degree intentional murder (RCW 9A.32.050(1)(a)), second degree felony murder predicated on second degree assault (RCW 9A.32.050(1)(b)), and unlawful possession of a firearm.

At trial, Jennings claimed at trial that he shot Burton in self-defense. However, the judge excluded the toxicology report showing that Burton had methamphetamine in his body at the time of his death.  A jury found Jennings guilty of second degree felony murder.

Jennings appealed on numerous issues, including arguments that the trial court violated his constitutional right to present a defense by excluding a toxicology report showing that Burton had methamphetamine in his body at the time of his death.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by emphasizing that criminal defendants have a constitutional right to present a defense under the Sixth Amendment. Furthermore, evidence of self-defense must be assessed from the standpoint of the reasonably prudent person standing in the shoes of the defendant, knowing all the defendant knows and seeing all the defendant sees. Finally, the court reasoned that evidence that might impact a defendant’s assessment of the danger presented, like the victim’s prior specific violent acts, is admissible only if known to the defendant when the incident occurred.

“In analyzing the Sixth Amendment right to present a defense, we balance the State’s interest in excluding the toxicology report against Jennings’s need for evidence showing that his subjective fear was reasonable,” said the Court of Appeals.

The Court further reasoned that in this case, the toxicology report did not have extremely high probative value and it did not constitute Jennings’s entire defense. “At trial, Jennings testified that what he observed on the day of the shooting gave rise to his subjective fear . . . his belief that Burton was high on methamphetamine,” said the Court.

“Jennings has not shown that there was a reasonable probability that any additional corroboration from the toxicology report would have materially changed the result at trial,” said the Court. “We hold that even if the trial court abused its discretion by excluding the toxicology report under ER 401 and 402, this ruling was harmless error.”

With that, the Court of Appeals upheld Mr. Jennings’ conviction.

My opinion? Evidentiary and legal issues aside, these facts are terribly tragic. My heart goes out to the friends and families of all who were impacted by this. From a legal standpoint, however, It appears the WA Court of Appeals conducted a basic balancing test under Washington’s Rules of Evidence and determined that the toxicology report of the victim’s meth/blood levels was neither probative nor relevant at trial.

Under Washington’s Rules of Evidence, relevant evidence is defined in ER 401 as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ER 402 provides that evidence which is not relevant is not admissible. Finally, ER 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by, among other things, the danger of unfair prejudice.

Here, the Court of Appeals was convinced that Mr. Jennings’ self-defense theory was properly supported by his testimony that he responded in self-defense to the victim’s meth-induced attack. Therefore, no other evidence was necessary to admit more evidence that the victim was high on meth. Jennings’ testimony, by itself, was enough. Any additional evidence on that issue was therefore cumulative, repetitive, unnecessary and potentially prejudicial to the State’s case under ER 403.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a possible defense. It’s important to hire an experienced criminal defense trial attorney who understands the law, the rules of evidence and how both contribute to trial defenses.

Guilty Verdicts Must Be Unanimous

Bellingham Defense Attorney, Homicide & Manslaughter, Jury Trial, Mount Vernon Criminal Defense Attorney, Race & Law, Sixth Amendment, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

In Ramos v. Louisiana, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that guilty verdicts must be unanimous.

BACKGROUND FACTS

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts.

In this case, the defendant Mr. Ramos was convicted of second degree murder in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He appealed his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

COURT’S ANALYSIS & CONCLUSIONS

Justice Gorsuch delivered the opinion of the Court, which reversed Ramos’s conviction on the basis that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.

First, the Court reasoned that a “trial by an impartial jury” requires that a jury must reach a unanimous verdict in order to convict.

“Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified . . . Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court.” ~Justice Gorsuch, United States Supreme Court

Second, the Court reasoned Louisiana’s and Oregon’s unconventional jury trial schemes had a long history of being viewed as unconstitutional. It stated that jury unanimity was essential to the right to a fair trial guaranteed by the Sixth Amendment. Furthermore, research has demonstrated that a unanimous jury requirement strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.

Finally, the Supreme Court overturned its deeply divided decision in Apodaca v. Oregon, which concluded that jury unanimity was required in federal criminal trials but not in state criminal trials. In short, the Court reasoned that modern empirical evidence and subsequent case law have undermined Apodaca’s reasoning and conclusions.

My opinion? The Court’s decision was a major victory for protecting the rights of criminal defendants. The Court recognized that jury unanimity has historically been an essential element of the Sixth Amendment right to an impartial trial by jury in criminal cases. Also, the potential impact of Ramos v. Louisiana extends far beyond issues of criminal procedure, as the justices’ spirited debate over when and whether to overturn precedent took center stage and illustrated deep divisions within the Court.

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

Washington State Bans ‘Gay Panic’ Defense of Homicide

Bellingham Defense Attorney, Diminished Capacity, Homicide & Manslaughter, Legislation, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,
reports that Washington has become the 10th state to prohibit homicide defendants from claiming a defense based on panic over a victim’s sexual orientation or gender identity.
Gov. Jay Inslee signed the measure Thursday. It takes effect in June. Nine other states — California, Connecticut, Hawaii, Illinois, Maine, Nevada, New Jersey, New York and Rhode Island — have already banned the use of gay or transgender panic as a legal defense.
The Washington state measure is named after Nikki Kuhnhausen, a transgender teen who was killed last year, The Columbian reported. It was approved with bipartisan support in the state House and Senate, though some lawmakers questioned if the legislation was necessary since a panic defense has never been used in Washington.

Kuhnhausen, 17, disappeared in early June and her remains were discovered Dec. 7, southeast of Battle Ground. A Vancouver man was charged with second-degree murder and malicious harassment, which is a hate crime in Washington. He has pleaded not guilty. Authorities said the Vancouver teenager was strangled after her assailant learned she was transgender.

The new law blocks a defendant from using a defense based on discovery or disclosure of the victim’s actual or perceived gender identity or sexual orientation and would prevent a claim of Diminished Capacity because the defendant did not fully comprehend the nature and gravity of the alleged crime.

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

A Cell Phone “Ping” Is a Search

Bellingham Defense Attorney, Cell Phone, Cell-Site Location Information (CSLI), Constitutional Rights, DNA, Exigent Circumstances, Fourth Amendment, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, police, Rape, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

In State v. Muhammad, the WA Supreme Court held that a cell phone “Ping” is a search under the WA Constitution and the Fourth Amendment.

BACKGROUND FACTS

Police investigated the rape and murder of Ms. Ina Claire Richardson. The night she was killed, Richardson had shopped at a local grocery store.  Security cameras recorded her walking through the parking lot toward a distinctive maroon sedan. Minutes later, the vehicle’s headlights switched on, and the vehicle exited the parking lot, drove onto an access road behind a nearby hotel, and parked. Two individuals appeared in the car, which remained parked for approximately one hour. Police officers later discovered a condom wrapper at this location.

On November 10, 2014, a law enforcement officer recognized the unique features of the maroon sedan from the security footage and conducted a traffic stop. The driver was Mr. Muhammad. During the stop, the officer asked Muhammad about his vehicle, asked him whether he had gone to the grocery store or had been in the area on the night of the murder, and obtained Muhammad’s cell phone number before letting him go.

After this encounter, law enforcement “pinged” Muhammad’s cell phone without a warrant. The ping placed Muhammad in an orchard in Lewiston, Idaho. Washington and Idaho police arrived, seized Muhammad’s cell phone, and impounded his car. Police also sought and obtained a search warrant for Muhammad’s car.

Muhammad was taken into custody. He denied any involvement in the rape and murder and eventually asked for legal counsel. Police later searched Muhammad’s car. They discovered blood on the passenger seat; in the trunk, they found latex gloves and other incriminating evidence. The police also discovered condoms in the trunk of the sedan. These condoms matched the condom wrapper found by the hotel service entrance. Finally, The blood was matched to that of Ms. Richardson. Autopsy swabs of Richardson’s vagina and fingernails revealed a limited amount of DNA (deoxyribonucleic acid) matching Muhammad’s profile.

The police obtained a search warrant for Muhammad’s cell phone records. These calls he made on the night of the incident connected to multiple cell towers, indicating that Muhammad was moving. One such cell tower placed Muhammad in the location where Richardson’s body was found.

Muhammad was arrested and charged with rape and felony murder.

At trial, Muhammad moved to suppress all physical evidence collected as a result of the warrantless ping of his cell phone. After a CrR 3.6 hearing, the trial court issued a written order denying the motion based in part on exigent circumstances. A jury convicted Muhammad as charged. Muhammad appealed his convictions.

COURT’S ANALYSIS & CONCLUSIONS

  1. The Cell Phone “Ping” Tracking Was A Warrantless Search.

The WA Supreme Court held that the “ping” tracking of Muhammad’s cell phone was indeed a search.

“When law enforcement loses sight of a suspected individual, officers need merely ask a cellular service carrier to ping that individual’s phone and almost instantaneously police acquire data on the suspect’s past and present location,” said the Court. “This location tracking technique does substantially more than binoculars or flashlights; it enables officers to see farther than even the walls of a home—it pierces through space and time to pinpoint a cell phone’s location and, with it, the phone’s owner.”

The Court further reasoned that this type of search was exactly what happened to Mr. Muhammad. “The police could not locate Muhammad,” said the Court. “They knew only that he had likely left the area after officers returned to his apartment complex and found the maroon sedan had disappeared. As Muhammad pointed out, the officers’ senses alone could not locate him unless they converted his phone into a tracking device,” said the Court.

“Historical and real-time CSLI, like text messages, reveal an intensely intimate picture into our personal lives. Our cell phones accompany us on trips taken to places we would rather keep private, such as the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.”

              2. Exigent Circumstances Exist to Justify the Warrantless Cell Phone Search.

The Court said that because the State failed to get a warrant prior to pinging Muhammad’s cell phone, the evidence obtained pursuant to the improper search should be suppressed unless the State proves that an exception to the warrant requirement applies. “Exigent Circumstances” is one of those exceptions.

To prove exigent circumstances, the State must point to specific, articulable facts and the reasonable inferences therefrom which justify the intrusion. “The mere suspicion of flight or destruction of evidence does not satisfy this particularity requirement,” said the Court.

The Court reasoned that under the facts of this case, the State has proved exigent circumstances—specifically that Muhammad was in flight, that he might have been in the process of destroying evidence, that the evidence sought was in a mobile vehicle, and that the suspected crimes (murder and rape) were grave and violent charges.

With that, the WA Supreme Court affirmed Muhammad’s conviction.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member face criminal charges and the evidence was obtained through a warrantless search of cell phone data and/or location. It is imperative to hire an experienced criminal defense attorney who is well-versed in the law regarding search and seizure of this evidence.