Category Archives: Homicide & Manslaughter

State v. Keodara: Overbroad Search Warrant for Cell Phone

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Due Process, Eighth Amendment, Evidence, felony, Homicide & Manslaughter, Ineffective Assistance, Probable Cause, Search and Seizure, Search Warrant, Sentencing, Technology, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Keodara, the WA Court of Appeals ruled that a search warrant was overbroad in violation of the particularity requirement because it allowed police to search a cell phone “for items that had no association with any criminal activity and for which there was no probable cause whatsoever.”

In 2011, the defendant Say Keodara was involved in a shooting at a bus stop.  Several weeks later, police arrested him for an unrelated incident. They searched his backpack and found his cell phone. Outside the backpack police found drugs, drug packaging and drug paraphernalia.  An officer submitted an affidavit in support of a search warrant for the contents of the cell phone.

The affidavit made several generalizations about drug dealers and gang members in support of the officer’s conclusion that there was evidence of crime on the cell phone. The judge issue the warrant pursuant to the affidavit, which ultimately allowed police to search Keodara’s entire phone without any limitations.  Police searched the phone and found evidence that the State used when trying Mr. Keodara for the shooting at the bus stop.

Keodara was charged with Murder in the First Degree, three counts of Assault in the First Degree (each with a separate firearm enhancement), and Unlawful Possession of a Firearm in the First Degree. He was convicted on all counts and sentenced to 831 months of prison (69.25 years).

On appeal, Keodara argued that the evidence from his phone should have been suppressed because the search warrant violated the Fourth Amendment to the United States Constitution and art. I, §7 of the Washington State Constitution. He also argued that his substantial prison sentence violated the Eighth Amendment.

Ultimately, the court held that although the search of Keodara’s phone violated the federal
constitution, the failure to suppress the evidence was harmless. It also held that Keodara’s sentence violated the 8th Amendment because the court failed to Keodara’s youth and other age-related factors into account. Accordingly, the court affirmed Keodara’s conviction but remanded for a new sentencing hearing.

In reaching its decision, the court reasoned that a warrant is overbroad if it fails to describe with particularity items for which probable cause exists to search. In this case, the affidavit for the warrant for Keodara’s phone contained blanket statements about what certain groups of offenders tend to do and what information they tend to store in particular places. Furthermore, the warrant’s language also allowed Keodara’s phone to be searched for items that had no association with any criminal activity and for which there was no probable cause whatsoever. The court also said the following:

Here, no evidence was seized that would have linked Keodara’s phone to the crimes listed in the warrant-unlawful possession of firearms, possession with intent to deliver or sell narcotics, or assault. Nothing in the record suggests that anyone saw Keodara use the phone to make calls or take photos. In addition, the phone was found in a backpack, separate from the drug paraphernalia or the pistol. There was no indication that evidence of firearms or drugs were found with the phone. We conclude that the warrant was overbroad and failed to satisfy the Fourth Amendment’s particularity requirement.

Nevertheless, the Court of Appeals also held that the trial court committed harmless error in admitting evidence police found on the phone:

Here, the untainted evidence of Keodara’s guilt was strong. Cellular phone tower records placed him near the location of the shooting, two eyewitnesses identified him, and another witness testified that Keodara contacted him and told him about the shooting. We find that the trial court’s denial of Keodara’s motion to suppress does not warrant reversal and, accordingly, we affirm his convictions.

The Court of Appeals also addressed the issue of whether Keodara’s sentence violated the Eighth Amendment. In short, the court said, “Yes.” It reasoned that the trial court did not take into account that Keodara was a juvenile at the time he committed the crimes or consider other age related factors that weigh on culpability or his capacity for rehabilitation. Based on that, the Court concluded that the sentence imposed in this case violated Keodar’s constitutional rights under the Eighth Amendment. Accordingly, the Court of Appeals vacated the sentence and remanded for a new sentencing hearing.

My opinion? Good decision. It appears that, more and more, our courts are rightfully acknowledging a Defendant’s youth at sentencing.

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

State v. Afeworki: “Band It” Restraint Is Constitutional

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

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

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

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

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

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

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

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

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

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

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

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

State v. Elkins: Officers Need Not Re-Advise Miranda in All Cases

Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Due Process, Evidence, felony, Homicide & Manslaughter, Jury Trial, law enforcement, Miranda, police, Self-Incrimination, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

How Long Do Miranda Rights Last? | Wallin & Klarich

In State v. Elkins, the WA Court of Appeals decided that whether the officers have scrupulously honored the defendant’ s right to silence and right to counsel under Miranda must be determined on a case -by -case basis, and that there is no bright-line rule requiring police officers to fully re-advise previously Mirandized suspects when reinitiating interrogation.

Yakima County deputies received a tip that defendant Eugene Elkins had killed his girlfriend Kornelia Engelmann. Yakima County deputies arrived and arrested him. He was advised of his Miranda rights. For those who don’t know, police officers must inform defendants of their Miranda rights once police place a defendant in custody and/or conduct investigations via questioning the defendant. The Miranda rights are stated as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Miranda protects a defendant’s Fifth Amendment rights against self incrimination, and may incline defendants to stop talking and/or immediately seek the advice of an attorney. Once a defendant asserts their Miranda rights, the police MUST stop questioning the defendant. And, generally speaking, police must repeat and re-inform defendants of their Miranda rights if questioning continues at a later time; and/or defendants change their minds and want to speak to the police.

Here, at around 3;30 p.m., Yakima County deputies advised Elkins of his Miranda rights before arresting him. Elkins declined to make a statement, and the Yakima County deputies did not question him further. They took him into custody.

Later, the police again attempted to interview Elkins at about 8: 30 PM. Although they did not re-advise Elkins of his Miranda rights, police asked Elkins if he had been advised of these rights, if he remembered them, and if he understood those rights were still in effect. After Elkins confirmed that he recalled being advised of his Miranda rights and that he understood those rights were still in effect, Elkins agreed to talk to the deputies. In short, he informed the police that he and Ms. Engelmann had a verbal argument which led to a physical altercation.

When the deputies commented on the extensive bruising on Engelmann’ s body and asked Elkins if he had kicked her, hit her with something, or hit her with a closed fist, Elkins said that he did not want to talk to the deputies any longer and requested an attorney. The deputies ended the interview.

On June 7, the very next day, Elkins gave a full written statement to police after they re-advised him of his Miranda rights. In the statement, he admitted to killing Engelmann. Elkins was subsequently charged with Murder in the Second Degree.

The case proceeded to a jury trial. Before trial, Elkins moved under CrR 3.5 to suppress the statements he made to the police on June 6 and June 7. However, the trial court admitted all of Elkins’ statements. At trial, Elkins was found guilty of Murder in the Second Degree. He appealed his conviction to the WA Court of Appeals Division II.

In rendering its decision, the Court acknowledged that fully re-advising a suspect of his Miranda rights is clearly the best practice when resuming questioning of a suspect who has asserted his right to silence. However, the Court also said there is no bright-line rule that law enforcement officers must always fully re-advise a defendant of his or her Miranda rights. In addition, they said that the issue of whether a defendant’ s rights have been scrupulously honored must be determined on a case-by-case basis.

The Court further reasoned that under the totality of the circumstances, Elkins statements were not coercively obtained by police. The facts show that ( 1) the Yakima deputies ceased questioning Elkins immediately when he asserted his right to silence, (2) no law enforcement officer attempted to interrogate Elkins for a significant period of time, five hours, before his subsequent contact with the police, ( 3) no law enforcement officer engaged in any coercive tactics, and (4) the police did not interrogate Elkins until after they confirmed that he had been read his rights, that he recalled those rights, and that he understood those rights were still in effect. The court also said the following:

“[T]he subsequent interrogation is proper if the State has shown that the defendant knowingly and voluntarily waived those rights given the totality of the circumstances, not whether the subsequent contact was preceded by law enforcement fully re-advising the defendant of his or her Miranda rights. When this and the other factors . . . are met, the officers have scrupulously honored the defendant’ s rights.”

Finally, the Court of Appeals reasoned that Elkins’ June 6 waiver was knowing and voluntary under the circumstances. They also reasoned that his statements made during transport and June 7, 2014 statements were also admissible because Elkins initiated the relevant conversation following his assertion of his right to counsel and then knowingly and voluntarily waived his Miranda rights. The Court of Appeals upheld his conviction.

My opinion? My heart goes out to the victim’s friends and family. I sincerely hope they find comfort in the Court of Appeals’ decision. However, I disagree with the decision. When it comes to protecting people’s constitutional rights, bright-line rules work best. And its always been a time-tested rule that police MUST re-advise suspects of their Miranda rights, especially under circumstances like this.

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. Irby: A Juror’s Bias Reverses Conviction

Bellingham Defense Attorney, Burglary, Constitutional Rights, Due Process, felony, Homicide & Manslaughter, Jury Selection, Jury Trial, Prosecutorial Misconduct, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Rigged: Racial Bias in Jury Selection | The Portland Observer

In State v. Irby, The WA Court of Appeals reversed the murder conviction of a defendant because a juror’s remarks during jury selection indicated her express bias against the defendant.

In reaching their decision, the court reasoned that when a juror makes an unqualified statement expressing actual bias, seating the juror is a manifest constitutional error that may be raised on appeal. Also, a juror’s statement during voir dire that she “would like to say he’s guilty” requires a new trial because no inquiry was made from the Prosecution that would have neutralized the statement.

In 2005, James Rock was murdered at his home in rural Skagit County. The investigations led to Terrance Irby, a known associate of Rock. Rock’s neighbors had seen Irby in the neighborhood on March 8. Irby was soon located in custody in Marysville. He had been arrested there on March 8, after running a red light and attempting to elude police. In Irby’s truck, officers found Rock’s weapons and boots splashed with Rock’s blood.

Irby was arrested and charged with Aggravated Murder in the First Degree, Burglary in the First Degree, and Felony Murder.

Oddly enough, in 2011, the WA Supreme Court had already reversed Irby’s convictions because of a violation of his right to a public trial. The violation occurred when the court and the attorneys agreed by e-mail, without Irby’s participation, to dismiss some of the potential jurors before voir dire began.

The State recharged the case. He awaited trial.  Irby had three different standby counselors while his case was pending. Irby fired all of them before the second trial began. As a consequence, the trial court granted Irby’s request to proceed pro se; or in other words, by himself without defense counsel.

On March 5, 2013—the first day scheduled for jury selection —Irby voluntarily absented himself from the proceedings. Irby said he did not believe he could get a fair trial in Skagit County. Trial became somewhat of a circus. By Irby’s choice, the trial proceeded before a jury that had been picked without any participation by Irby. Every day before trial resumed, the trial court had Irby brought from the jail into the courtroom so that the court could verify that he still wanted to remain absent.

The jury convicted Irby as charged on March 12, 2013.

The primary issue on appeal was whether juror bias – specifically, the bias of the juror who said she “would like to say he’s guilty” – violated Irby’s right to a fair and impartial jury.

In reaching its decision the Court of Appeals reasoned that under RAP 2.5(a)(3), a party may raise for the first time on appeal a “manifest error affecting a constitutional right.” Here, criminal defendants have a federal and state constitutional right to a fair and impartial jury. Criminal defendants have a federal and state constitutional right to a fair and impartial jury. The error alleged here, seating a biased juror, violates this right.

Furthermore, the court reasoned that seating that particular juror manifested actual bias. Under RCW 4.44.170(2) actual bias is “the existence of a state of mind on the part of the juror in reference to the action, or to either party, which satisfies the court that the challenged person cannot try the issue impartially and without prejudice to the substantial rights of the party challenging.” The Court of Appeals said both thetrial judge and the Prosecutor failed to elicit any assurances from that juror that she had an open mind on the issue of guilt. This was wrong.

The Court of Appeals concluded that the juror at question demonstrated actual bias and that seating her was manifest constitutional error requiring reversal of all convictions and remand for a new trial.

My opinion? It’s awful and tragic that Mr. Rock died a violent and painful death. My condolences go to his family and everyone who cared for him. Anyone in their circumstance would want the murderer brought to justice and convicted for these horrible crimes.

However, gaining convictions is meaningless if the courts and prosecutors violate a defendant’s rights in the process. It devalues the entire criminal justice system. It loses credibility and coherence.

Perhaps the Judge and Prosecutor failed to make a record of “rehabilitating” that particular juror of her biases – a process which happens at EVERY jury trial I’ve conducted – because neither Mr. Irby nor a criminal defense attorney was at jury selection to attempt to strike that particular juror for cause. Neverthless, all of us now have a greater understanding of why it’s necessary for attorneys to engage the colloquy of ensuring that jurors are NOT biased – even when they most certainly are.

Eliminating biased jurors from trial not only ensures a fair trial for the defendant. It also creates a court record for ensuring that jury verdicts are not overturned on appeal. As this one was.

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. MacDonald: Police Cannot Testify for Victims at Sentencing

Bellingham Defense Attorney, Constitutional Rights, DNA, Due Process, Evidence, felony, Homicide & Manslaughter, law enforcement, Sentencing, Violent Crime, Washington Supreme Court, , ,
In a close opinion, the WA Supreme Court ruled in State v. MacDonald that an investigating officer may not request the judge for a sentence greater than that in the State’s plea agreement. Even when the investigating officer claims to be speaking on the victim’s behalf, statements that are contrary to the plea agreement will constitute a breach of the agreement.
 In 1978, Arlene Roberts was found dead in her home. The police collected several latent fingerprints from bank statements and traveler’s checks within her trailer but never identified a suspect. The case went inactive.
 In 2010, detective Scott Tompkins reviewed the case files and matched the fingerprints to MacDonald.
The Prosecutor charged MacDonald with Murder in the First Degree.
 After the trial began, the parties entered into plea negotiations. The State agreed that the prosecutor would change the charge from first degree felony murder to second degree manslaughter and recommend a five-year suspended sentence in exchange for an Alford plea. MacDonald accepted the plea agreement.
 At sentencing, Deputy Prosecutor Kristin Richardson informed the court that detective Tompkins wished to speak on behalf of the victim pursuant to RCW 9.94A.500. Though detective Tompkins was involved throughout the plea negotiations and Richardson intended for Tompkins to sit at counsel’s table pursuant to Evidence Rule 615 in order to assist her, Prosecutor Richardson asserted that she did not know what Tompkins wanted to say. MacDonald objected, but the trial court permitted Tompkins to testify as a victim advocate over MacDonald’s objection.
Tompkins immediately asked the court to impose the maximum sentence. He described what happened to the victim and gave the court marked photographs of the victim’s body as police found her. Tompkins informed the court that the medical examiner’s report contained 18 paragraphs detailing her injuries and then asserted that Roberts “died a horrific death.”
The trial court imposed the maximum sentence, giving MacDonald 60 months in prison with a minimum sentence of 55 months and credit for time served. Macdonald moved to withdraw his plea. The Court of Appeals denied MacDonald’s motion.

The WA Supremes decided to reverse the Court of Appeals and permit MacDonald to decide whether to withdraw his guilty plea or to seek specific performance. The court agreed with the reasoning in State v.  Sanchez that investigating officers cannot make sentence recommendations contrary to a plea agreement. The Court also reasoned that the same due process concerns stopping an investigating officer from undermining a plea agreement also stop that officer from making unsolicited remarks on a victim’s behalf to the court at sentencing that are contrary to the plea agreement. Washington’s crime victims’ rights laws do not permit the State to breach a plea agreement.

My opinion? Although I offer my deepest condolences to the family of the victim, I must agree with the WA Supremes on this.

A plea agreement is a contract between the State and the defendant. The Prosecutor thus has a contractual duty of good faith. Prosecutor cannot undercut the terms of the agreement, either explicitly or implicitly, or by conduct showing intent to circumvent the terms of the plea agreement. In Washington, the statutory relationship between prosecutors and investigating officers binds investigating officers to plea agreements in a criminal case.

That said, detective Tompkins was acting in the role of substantially assisting the prosecution. This is unlawful. It violates procedural due process. Apparently, the WA Supremes agreed. 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.

State v. Henderson: Lesser Included Jury Instructions

Bellingham Defense Attorney, felony, Firearm, Homicide & Manslaughter, Jury Trial, Lesser Included Jury Instruction, Violent Crime, Washington Court of Appeals, Washington Supreme Court,

 

In State v. Henderson, the Washington Supreme Court decided that the jury of a defendant charged with first degree murder by extreme indifference should have been instructed on the lesser included offense of first degree manslaughter.

Some background on “Lesser Included” Crime is necessary. In short it is a lesser crime whose elements are encompassed by a greater crime. A lesser included offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of Murder, Assault is a lesser included offense of Rape, and Unlawful Entry is a lesser included offense of Burglary.

Here, the defendant Marsele Henderson fired gunshots at a house party on November 16, 2008. One of the most important – and disputed – facts in this case is how many people were in the area in front of the house at this time just prior to shots being fired toward the house. Was it a small group of people or a large group? Witness testimony on this point varied significantly.  This question mattered because whether Henderson shot into a large crowd of people or whether he shot toward an area with very few people determined the nature of the crime.

A month after the shooting, prosecutors charged Henderson with Murder in the First Degree by Extreme Indifference under RCW 9A.32.030(1)(b). At trial, Henderson asked that the jury be instructed on the lesser included charge of Manslaughter in the First Degree under RCW 9A.32.060.  Initially, the Prosecutor agreed. However, the Prosecutor later changed its position. The trial court denied the defendant’s motion for a lesser included jury instruction. The jury convicted Henderson of Murder in the First Degree by Extreme Indifference. Henderson appealed, contending that the trial court erred when it refused to instruct the jury on Manslaughter in the First Degree. The Court of Appeals decided that Henderson should have been granted the lesser-included jury instruction. The state appealed.

Ultimately, the Washington Supreme Court decided the issue of whether Henderson was entitled to a jury instruction on Manslaughter First Degree as a lesser included charge to Murder in the First Degree by Extreme Indifference.

The WA Supremes upheld the Court of Appeals and decided that Henderson should have been granted the lesser-included jury instruction. It affirmed the Court of Appeals and reversed Henderson’s conviction.

In reaching this decision, the court reasoned that under State v. Workman, a defendant is entitled to an instruction on a lesser included offense when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed. Under this framework, the court based their conclusion on two unique aspects of the case.

First, this crime involved a shooting outside a house party and the evidence consisted largely of eyewitness testimony that varied widely and was often conflicting. Thus, viewing the evidence in the light most favorable to the defendant results in a much more significant shift than it would in cases with uncontroverted evidence.

Second, the definitions of the lesser crime (disregarding a substantial risk that a homicide may occur) and the greater crime (creating a grave risk of death) are very close to each other-much closer than is typical.

As a result, the WA Supremes could not say that no jury could have rationally found that the defendant committed the lesser crime rather than the greater crime. Thus, the court held that the jury should have been allowed to determine whether Henderson committed the greater or lesser crime.

My opinion? Good decision.

In criminal trials, juries are given the option of convicting defendants of lesser included offenses when warranted by the evidence. Giving juries this option is crucial helps our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free. In some cases, that will create a risk that the jury will convict the defendant despite having reasonable doubts.

To minimize that risk, courts prefer to err on the side of instructing juries on lesser included offenses. Under State v. Fernandez-Medina, a jury must be allowed to consider a lesser included offense if the evidence, when viewed in the light most favorable to the defendant, raises an inference that the defendant committed the lesser crime instead of the greater crime. If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury MUST be instructed on the lesser offense.

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. Walker: WA Supreme Court Decides Prosecutor’s Powerpoint Presentation Violates Defendant’s Right to Fair Trial

Accomplice, Constitutional Rights, Due Process, felony, Firearm, Homicide & Manslaughter, Jury Trial, Prosecutorial Misconduct, Robbery, Uncategorized, Violent Crime, Washington Supreme Court, , ,

7 Tips In Making Your Business PowerPoint Presentation Presentable | The Marketing Scope

EXCELLENT opinion. In State v. Walker, the Washington Supreme Court decided the Prosecutor improperly used a PowerPoint presentation during closing argument to convey egrigious misstatements which violated the defendant’s right to a fair trial.

At his jury trial, defendant Odies Delandus Walker was convicted as an accomplice to Murder in the First Degree, Assault in the First Degree, Robbery in the First Degree Solicitation and Conspiracy. The WA Supreme Court addressed the issue as whether those convictions must be reversed in light of the Power Point presentation the prosecuting attorney used during closing argument.

The Prosecutor’s presentation repeatedly expressed the prosecutor’s personal opinion on guilt-over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER,” and one slide showed Walker’s booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT,” which were superimposed over his face in bold red letters. The prosecutor also appealed to passion and prejudice by juxtaposing photographs of the victim with photographs of Walker and his family, some altered with the addition of inflammatory captions and superimposed text (please click the above link to the Walker opinion for a look at the specific Powerpoint slides and images).

In reaching its decision, the court reasoned that while the prosecutor is entitled to draw the jury’s attention to admitted evidence, those slides, as presented, served no legitimate purpose. Their prejudicial effect could not have been cured by a timely objection, and we cannot conclude with any confidence that Walker’s convictions were the result of a fair trial. Consistent with both long-standing precedent and our recent holding in In re Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012), the court reversed Walker’s convictions and remanded for a new trial.

The Court also gave some powerful language regarding how the prosecution committed serious misconduct in the portions of the PowerPoint presentation discussed above:

“We have no difficulty in holding the prosecutor’s conduct in this case was improper. Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered version of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Furthermore, RPC3.4(e) expressly prohibits a lawyer from vouching for any witness’s credibility or stating a personal opinion ‘on the guilt or innocence of the accused.’”

My opinion? Good decision. It’s very encouraging for trial attorneys to learn from these opinions. For example, we can argue Motions in Limine asking that the State’s PowerPoint presentations are disclosed in advance of closing arguments. The Walker opinion expressly endorses this approach.

Furthermore, this is the second opinion this month handed down by the WA Supremes regarding Prosecutorial Misconduct during closing arguments (please read my blog on State v. Allen). It appears the WA Supremes are on a roll.

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.

State v. Walker: Shackled Defendants

Assault, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Homicide & Manslaughter, Jail, Jury Trial, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Judges now deciding daily if inmates should wear shackles in court - oregonlive.com

Interesting case on shackled defendants appearing at non-jury hearings . . .

In State v. Walker, the Court of Appeals decided a trial judge can decide whether and how a prisoner should be restrained by shackles in the courtroom.

Here, the defendant Vernon Walker pleaded guilty to one count of Murder in the Second Degree and one count of Assault in the Second Degree arising from a 2003 shooting. At his sentencing hearing, jail security officers transported him to court wearing handcuffs and leg restraints. The trial court denied Walker’s motion for an order removing the handcuffs for the hearing. On appeal, Walker argues that the denial of his motion violated his constitutional right to appear before the court free of physical restraint. He also argued for a new sentencing hearing.

On appeal, Walker argued he had a constitutional right to appear in court free from restraints, regardless of whether a jury was present, and that there was no factual basis to support his shackling. He contended that because he had no history of disrupting court proceedings or attempting to escape from the courtroom, there was no reason to believe that he would do so at his sentencing hearing. He argued that the State’s claims otherwise were speculation. Walker also asserted that restraints would dehumanize him and prejudice the sentencing judge.

 Despite Walker’s arguments, the Court of Appeals disagreed. They reasoned a trial judge has sole authority over whether and how a prisoner should be restrained in the courtroom. Furthermore, even though the law strictly forbids defendants from appearing before juries wearing shackles, a court may shackle a defendant at non-jury hearings on a “lesser showing” than is required to shackle a defendant during a jury proceeding. Finally, the court reasoned that restraints are permissible in non-jury hearings to prevent injury to people in the courtroom, disorderly conduct at trial, or escape.

My opinion? This is a tough case. It is well settled that in a proceeding before a jury a criminal defendant has a constitutional right to appear free from restraints or shackles of any kind. In State v. Williams, the defendant’s conviction for burglary was reversed because the trial court, without justification, denied the defendant’s motion that he and his witnesses be unshackled before the jury during the trial. The Williams court cited article 1, section 22 of the Washington State Constitution which provides “In criminal prosecutions the accused shall have the right to appear and defend in person,” and stated:

The right here declared is to appear with the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Here, in the Walker case, the Court of Appeals distinguished its reasoning from Williams to the extent that Williams only applied to times when the defendant was before the jury. Otherwise, for non-jury hearings, judges have full authority to decide whether defendants must appear in restraints and shackles.

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

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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.

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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.