Category Archives: Jury Trial

Jury Questions

Should Jurors Be Allowed to Ask Questions During a Criminal Trial? – GRAND  JURY TARGET

In State v. Sutton, the WA Court of Appeals held that, when answering a deliberating jury’s questions, a trial court has a responsibility to ensure that the jury understands the law.

BACKGROUND FACTS

Law enforcement executed a search warrant looking for evidence of drug trafficking at an address on in Newman Lake, Washington. At the property, they found the defendant Ms. Sutton and numerous co-defendants. The ensuing investigation led to Sutton and the co-defendants being arrested for the Kidnapping and Murder.

The State charged Sutton with first degree felony murder predicated on kidnapping, first degree kidnapping, and Leading Organized Crime. With respect to the charge of Leading Organized Crime, the State alleged that Sutton did intentionally organize, manage, and direct three or more persons  with the intent to engage in a pattern of criminal profiteering activity, to-wit: Delivery of a Controlled Substance.

Sutton testified in her defense. She admitted she sold drugs, but denied she sold drugs or directed the co-defendants to commit any crimes.

During deliberations, the jury forwarded a written question to the judge.  “For instruction #25, must the defendant have organized (etc.) all three of the listed persons specifically, or just any 3 or more persons (as instruction #24 states)?”

The judge asked counsel for suggestions on how it should respond to the jury’s question. Both the Prosecutor and Defense Counsel agreed the answer was, “Yes.” Ultimately, the trial judge decided that the best answer was to simply direct the jury to refer back to its instructions. Soon after, the jury returned guilty verdicts.

Sutton appealed her conviction on arguments that the trial court abused its discretion by declining the proposed defense jury instruction that accurately stated the law.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Defendants are guaranteed a fair trial under the Sixth Amendment to the United States Constitution, which requires jury instructions that accurately inform the jury of the relevant law. Furthermore, CrR 6.15(f)(1) permits trial judges to give the jury supplemental written instructions on any point of law after deliberations begin. This is done to ensure a jury is informed of the relevant law.

“A trial court should ensure that the jury understands the law . . . When it is apparent the jury does not understand the law, the trial court may and should issue a supplemental written instruction. A failure to do so is inconsistent with its responsibility to ensure the jury understands the law and risks the jury rendering a verdict contrary to the evidence.” ~WA Court of Appeals

Next, the Court of Appeals addressed whether the trial court should have given a supplemental instruction to clarify the law. It raised and dismissed Mrs. Sutton’s arguments that under State v. Backemeyer, a trial court should ensure that the jury understands the law. “Backemeyer is distinguishable from this case,” said the Court of Appeals. “There, it was clear that the jury misunderstood the law. Here, the to-convict instruction was clear.”

The Court further reasoned that the jury’s question did not create an inference that the entire jury was confused or that any confusion was not clarified.

“At a minimum, the jury’s question showed that some jurors wanted assurance they need not be concerned about the different wording in instruction 24. And because the trial court has a responsibility to ensure that the jury understands the law, it should have answered the jury’s question. It could have answered: ‘To convict Sutton of leading organized crime, the State must prove the elements of that crime as set forth in Instruction 25 beyond a reasonable doubt.’ Nevertheless, the trial court’s decision not to answer the jury’s question was not an abuse of discretion.” ~ WA Court of Appeals.

With that, the Court of Appeals upheld Sutton’s conviction.

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.

COVID-19 Impact on Trials

Coronavirus: California suspends jury trials in superior courts for 60 days – Orange County Register

Excellent article in Time magazine by reporter Melissa Chan discusses the Coronavirus Pandemic’s impact on our criminal justice system.

Since COVID-19 was declared a national emergency in March 2020, every state and Washington, D.C., has canceled or scaled back in-person criminal court proceedings to stem the spread of the virus. The snarled justice system has left hundreds of thousands of families waiting for trials and other resolutions, while creating a cascade of civil rights issues for the accused.

According to Chan, more defendants – especially those with health problems – are striking plea deals to avoid sitting in jail for an undetermined amount of time, defense attorneys say. And virtual courts are exposing the disadvantages of the poor, who are less likely to afford Internet access for court dates, as a staggering number of new criminal cases stack up.

The first few courts in the U.S. to stop jury selection and postpone new criminal and civil trials did so around March 2020. At that time, health officials began urging millions of Americans to stay at home and keep 6 ft. away from others when venturing out. Even the U.S. Supreme Court postponed oral arguments for the first time in more than 100 years.

By fall 2020, some criminal jury trials had resumed with restrictions, including in areas of New York State, where each county was allowed to hold one criminal trial at a time in courtrooms outfitted with plexiglass barriers and jury seats spaced several feet apart.

But the reopening was short-lived, reports Chan. A surge in COVID-19 cases around the holidays forced another round of court restrictions. At the end of November, about two dozen U.S. district courts nationwide resuspended jury trials and grand jury proceedings, marking a “significant pause” in efforts by federal courts to resume full operation, court officials said.

Today, even in jurisdictions where in-person proceedings have resumed, limits on how many people can be in a courtroom at the same time for things like jury selection continue to slow the system.

In a pre-pandemic world, state courts typically resolved 18 million felony and misdemeanor cases annually, according to an NCSC study in August 2020, and an estimated 8 million to 10 million U.S. citizens reported for jury duty each year.

“We’re in sort of this holding period.” ~Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts (NCSC).

Apparently, jury trials returning to any semblance of normality until at least 2022.

My opinion? The courts are doing their best to open again, albeit safely. Nobody wants a jury trial to become a super-spreader.

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.

A Return to Jury Trials

What Jury Service During the Coronavirus Pandemic Looks Like - The New York Times

Whatcom County Superior Court will resume 12-person jury trials starting March 15, according to a Wednesday afternoon press release from Whatcom County Superior Court Judge Rob Olson.

Several Whatcom County courts, including the Superior Court, used emergency administrative orders to suspend jury trials in mid-March 2020 due to the COVID-19 pandemic.

Judge Robert Olson’s March 3 news release said “extensive new” safety precautions have been put in place to protect the safety of jurors and the public in order for trials to resume.

“The suspension of jury trials was needed to protect the public and court staff, and it gave us the opportunity to redesign our jury processes with the input of public health experts, trial participants, and other stakeholders . . . Now it is critical that we re-start jury trials, which are key to the fair administration of justice.” ~Whatcom County Superior Court Judge Robert Olson.

Prospective jurors will have their temperature checked and be screened for health problems on arrival. Safe distancing will be maintained during the selection process and no food, drink or reading materials will be provided for safety.

Just one trial will be conducted at a time using both large courtrooms to allow for safe distancing, and all trial participants will have to wear masks.

Anyone showing symptoms of COVID-19 or other health problems will be excused from jury duty.

My opinion? Excellent news. Conducting jury trials during the Coronavirus Pandemic has posed significant practical and legal challenges for courts. Hopefully, our courtroom safeguards will help chart a trustworthy path to safely resuming jury trials soon.

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

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

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

Victim’s Motive To Testify

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

Guilty Verdicts Must Be Unanimous

In Louisiana, you can be convicted of a serious crime by a 10-2 ...

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.

Rape By Forcible Compulsion or Consent?

GDPR Brief: What is the difference between research ethics consent and data  protection consent?

In State v. Knapp, the WA Court of Appeals held a defendant charged with rape by forcible compulsion is not entitled to a jury instruction that requires the State to prove the absence of consent beyond a reasonable doubt.

BACKGROUND FACTS

Mr. Knapp and Ms. Spaulding met in high school and were friends for more than a decade. On February 7, 2016, Ms. Spaulding was preparing to watch the Super Bowl when Knapp came to her home. Ms. Spaulding let him in. The events following this were disputed.

According to Ms. Spaulding, Knapp began to make sexual comments toward her and expressed an interest in having sex. Ms. Spaulding denied his advances. Knapp then left, but soon returned to the home, claiming he forgot his bandana. Ms. Spaulding let him in again and while she was sitting on the couch, Knapp threw her to the ground and pulled down her pants.

Ms. Spaulding screamed for her neighbors, but they did not hear her. Knapp then used his bandana to gag her. The struggle continued until Knapp pinned her against a wall and raped her. Ms. Spaulding continued to say, “No,” “Stop,” and “Don’t do this.” Knapp left, and Ms. Spaulding called her mother and then the police. Ms. Spaulding was taken to the hospital where she underwent a sexual assault examination.

According to Knapp, he and Ms. Spaulding were “friends with benefits” for years and engaged in sex together on and off. After Ms. Spaulding let him in the first time, Ms. Spaulding realized Knapp was high on methamphetamine and she hinted that she wanted some. Knapp refused to give her any. Ms. Spaulding became upset, and Knapp decided to leave.

After he left, Knapp realized he forgot his bandana and returned to retrieve it. Ms. Spaulding let him in again, and she pressed Knapp to get her high. Eventually, Ms. Spaulding offered sex for drugs. At that point, Knapp “gave in” and they had sex. Afterward, Knapp could not find the methamphetamine to give to her. Ms. Spaulding became upset and threatened to call the police and falsely accuse him of rape. Knapp left and was later arrested. The State charged Knapp with rape in the second degree by forcible compulsion.

THE TRIAL

At trial, Knapp requested a jury instruction that told the jury the State had the burden of proving an absence of consent beyond a reasonable doubt. The State opposed this instruction, arguing it was not a correct statement of the law. The State instead proposed Washington pattern jury instruction 18.25, which reads, “Evidence of consent may be taken into consideration in determining whether the defendant used forcible compulsion to have sexual intercourse.”

The trial court declined to give Knapp’s proposed instruction and instead gave the State’s. The jury found Knapp guilty of second degree rape. The trial court sentenced Knapp to a midrange sentence—110 months to life.

Knapp appealed on the issue of whether the jury was properly instructed on the issue of consent.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that at trial, each party is entitled to have the jury instructed on its theory of the case when there is sufficient evidence to support that theory.

“Jury instructions are sufficient if they are supported by substantial evidence, allow the parties to argue their theories of the case, and when read as a whole properly inform the jury of the applicable law,” said the Court. “Read as a whole, the jury instructions must make the legal standard apparent to the average juror.”

Here, both parties relied heavily on State v. W.R., a case which apparently offers confusing interpretations of which party in a criminal sex case has the burden of proving consent.

The Court acknowledged that Knapp argued that W.R. stands for the proposition that the burden to prove consent has now shifted to the State, and the State must prove a lack of consent beyond a reasonable doubt. Knapp’s proposed jury instruction read: Consent means that at the time of the act of sexual intercourse there are actual words or conduct indicating a freely given agreement to have sexual intercourse. The Defendant has no burden to prove that sexual intercourse was consensual. It is the State’s burden to prove the absence of consent beyond a reasonable doubt.”

However, the Court of Appeals disagreed with Knapp:

“The court in W.R. focused on whether the burden to prove consent was correctly placed on the defendant. It did not hold that the State must prove the absence of consent.”

The Court ruled that the trial court did not commit legal error when it denied Knapp’s proposed instruction. “Knapp’s proposed instruction was an incorrect statement of the law,” it said. “W.R. did not hold that the burden to prove an absence of consent shifted to the State. Instead, it held that the burden to prove consent cannot be placed on the defendant.”

Furthermore, when read as a whole, the trial court’s instructions allowed Knapp to argue his theory of the case. “Knapp claimed the sexual intercourse was consensual,” said the Court of Appeals. “The court’s instructions on the elements of the offense and consent allowed Knapp to argue his theory of the case—that Ms. Spaulding consented to sexual intercourse and the State failed to prove forcible compulsion beyond a reasonable doubt.”

With that, the Court of appeals affirmed Knapp’s conviction.

Please contact my office if you, a friend or family member face a sex offense. Consent is a viable defense, and evidence of consent may be considered by the jury. Therefore, it’s imperative to hire a defense attorney knowledgeable of the law surrounding these issues.

Appearance of Fairness

Image result for police officer stands beside testifying witness

In State v. Gorman-Lykken, the WA Court of Appeals held that before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, and (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant.

BACKGROUND FACTS

Mr. Gorman-Lykken was charged with Rape in the Second Degree (DV). The State was required to prove that Gorman-Lykken engaged in sexual intercourse with his girlfriend when she was incapable of consent.

At trial, Gorman-Lykken wanted to testify. Before he did so, his defense attorney objected to the proximity of the corrections officer assigned to Gorman-Lykken while he was on the witness stand. The trial court responded, “Let me just touch base with the corrections officer.” The corrections officer stated, “If he’s up here, we’re up here.”

The trial court then observed on the record that sometimes one to three corrections officers were assigned to a defendant in court and that “sometimes those individuals are large, larger than average.” By contrast, the court noted that the corrections officer assigned to Gorman-Lykken was “not one of our largest corrections officers, and there’s only one of her.” The court also stated that “the policy of the corrections staff is that . . . they are to be in close proximity to somebody who is testifying that’s been accused of a crime.” The court concluded, “I think on the whole I’m comfortable having the officer
stay where she’s at.”

The jury found Gorman-Lykken guilty as charged. He appealed his conviction on the issue of whether the trial court erred in allowing the corrections officer to be stationed next to him during his testimony as a security measure.

COURT’S ANALYSIS & CONCLUSIONS

Preliminarily, the Court of Appeals said that trial courts have broad discretion to make trial management decisions, including provisions for the order and security of the courtroom.

However, the Court also acknowledged that trial courts commit reversible error when they base their decisions solely on the judgment of correctional officers who believed that using restraints during trial was necessary to maintain security, while no other justifiable basis existed on the record.

Furthermore, Courts have recognized that certain courtroom security measures are inherently prejudicial. This includes shackling, handcuffing, or other physical restraints; gagging the defendant and holding a trial in a jail. Courts must closely scrutinize such measures to ensure that they further essential state interests.

“Before allowing a security officer to be stationed next to the witness stand when the defendant testifies, the trial court must (1) state case-specific reasons for the need for such a security measure, (2) determine that the need for the security measure outweighs the potential prejudice to the testifying defendant,” said the Court of Appeals.

Here, however, the Court of Appeals was concerned that the trial court never stated case-specific reasons why this case or this defendant created the need for this security measure.

“The court simply stated, ‘I’m comfortable having the officer stay where she’s at,'” said the Court of Appeals. “Accordingly, we hold that the trial court abused its discretion in allowing the corrections officer to be stationed next to the witness stand when Gorman-Lykken testified.”

“Here, the State does not argue that any error was harmless. And there is no indication that the State could show harmlessness beyond a reasonable doubt. Even though stationing an officer next to the witness stand may not be inherently prejudicial, allowing that measure created a risk that the jury might infer that Gorman-Lykken was dangerous or guilty. The State cannot show beyond a reasonable doubt that stationing the officer next to the witness stand did not influence the jury.”

The Court also noted that the evidence of Gorman-Lykken’s guilt was not so overwhelming that a guilty verdict was the only rational result. At trial, Gorman-Lykken’s girlfriend testified that she had taken medication that essentially put her to sleep and that she had told Gorman-Lykken not to have sex with her while she was asleep.

“But Gorman-Lykken testified that he asked his girlfriend if she was up for sex, that she verbally agreed, and that she was coherent during the sexual activity,” said the Court of Appeals. “Therefore, the jury was presented with conflicting evidence, not evidence that overwhelmingly established Gorman-Lykken’s guilt.”

With that, the Court of Appeals held that the trial court’s error in allowing an officer to be stationed next to the witness stand when Gorman-Lykken testified was not harmless. It reversed Gorman-Lykken’s conviction and remanded the case back to the trial court for further consideration.

My opinion? Good decision. It’s highly prejudicial to have police and correctional officers standing by defendants as they testify before a jury. It silently says that the defendant is extremely dangerous and volatile. Juries are more likely to convict defendants who appear dangerous. Congrats to the Court of Appeals for deciding this one correctly.

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.

Self-Defense in Jail

Image result for jail fights

In State v. Tullar, the WA Court of Appeals held that a defendant was entitled to a self-defense instruction even though he did not testify that he feared his opponent would badly beat him. The defendant may establish his subjective fear by circumstantial evidence through the testimony of others.

FACTUAL BACKGROUND

On December 31, 2017, a correctional officer  Millward was making his welfare checks on inmates at the Okanogan County jail.  He came across Johnathan Cook’s cell. Officer Millward saw Cook facing away from the door, and Officer Millward could tell something was wrong. Officer Millward asked Cook to turn around, and he noticed bruising and a laceration on Cook’s face, a bloodstained shirt, and bruising on his ear. Officer Millward took Cook to get medical attention. Cook was diagnosed with a fractured nose and a fractured left eye socket.

Mr. Cook said he was assaulted by fellow inmate Brandon Tullar.

Jail authorities confronted Tullar, who denied fighting Cook. Despite his denials, there were noticeable marks on Tullar’s hands and his elbow, as well as red marks on his neck.  The State charged Tullar with assault in the second degree. Tullar asserted the defenses of self-defense and mutual combat.

Tullar’s case went to trial. He withdrew his claim of self-defense and proceeded with the defense of mutual combat. He then called two fellow inmates who witnessed the fight. According to both inmates, Cook and Tullar were arguing, and Cook challenged Tullar to a fight. Cook and Tullar then went upstairs to Cook’s cell, with Tullar going first. Once inside the cell, Cook hit Tullar from behind. Cook put Tullar in a chokehold, but Tullar escaped. They exchanged punches until Cook gave up.

Despite the testimony from witnesses, the trial court denied Tullar’s jury instruction for self-defense because Tullar did not testify. The trial court also noted that self-defense was inconsistent with mutual combat. The jury found Tullar guilty of assault in the second degree. Tullar timely appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals gave background on Washington’s self-defense laws. In Washington, the use of force is lawful when used by a person about to be injured, provided that the force used is not more than necessary. Because self-defense is a lawful act, it negates the mental state and the “unlawful force” elements of second degree assault. Importantly, the Court also reasoned that self-defense does not require testimony from the defendant.

“Evidence of self-defense may come from whatever source and the evidence does not need to be the defendant’s own testimony.”

Here, Tullar’s witnesses testified that Cook hit Tullar from behind and then put him in a chokehold. From this, a trier of fact could infer that Tullar reasonably feared that if he did not fight back, he would be rendered unconscious. Additionally, Tullar’s witnesses testified that Tullar stopped fighting when Cook gave up. From this, a trier of fact could find that Tullar used no more force than necessary. A self-defense instruction was warranted to let the finder of fact determine whether it believed Cook or whether it believed Tullar’s witnesses.

“The trial court’s decision to not instruct the jury on self-defense virtually guaranteed Tullar’s conviction,” said the Court of Appeals. “The trial court’s refusal to give a self-defense instruction thus prejudiced Tullar.”

Consequently, the Court of Appeals reversed Tullar’s conviction.

My opinion? Good decision. Self-defense is a substantive defense which can guarantee a full acquittal if the court allows the instruction at trial. It shouldn’t matter whether the defendant testifies if trustworthy witnesses can testify and lay the groundwork for the defense.

Please contact my office if you, a friend or family member face criminal charges and self-defense is a viable defense. Hiring an effective and competent defense attorney is the first and best step toward justice.

“Am I Free To Leave?”

RAW VIDEO: Camaro vs Police Cars After Game Stop Robbery in Houston -  YouTube

In State v. Johnson, the WA Court of Appeals held that a “seizure” of a person occurs when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure.

BACKGROUND FACTS

Officer Yates and Officer George of the Lynnwood Police Department were engaged in a proactive patrol late at night in an area known to have a high rate of criminal activity. The officers observed a silver vehicle enter a motel parking lot and park in a stall. After the vehicle came to rest, about a minute and a half passed without any person entering or leaving the vehicle. The officers became suspicious that its occupants were using drugs.

The officers, both of whom were armed and in uniform, approached the vehicle on foot and stood on opposite sides adjacent to the driver’s and passenger’s doors. They shined flashlights into the vehicle’s interior to enable them to see the vehicle’s occupants and ensure that neither was holding anything that could put the officers in danger. Because the vehicle was also flanked on both sides by cars parked in adjoining stalls, the officers had minimal space to move.

Officer Yates did not see any drugs or drug paraphernalia when he shined his flashlight inside the passenger compartment. Inside were the defendant Mr. Johnson and a female passenger.

Officer Yates stood on the passenger side while Officer George stood adjacent to the driver’s door. Yates sought to start a conversation with Johnson, who was in the driver’s seat, and did so by asking, “Hey, is this Taylor’s vehicle?” In fact, there was no “Taylor”; the ruse was intended to make Johnson feel more comfortable, in the hope that he would talk with the officer. Johnson appeared confused by the question, and Yates asked, again, whether the vehicle was “Taylor Smith’s vehicle.” In response, Johnson stated that the vehicle was his own and that he had recently purchased it.

Meanwhile, Officer George, who was leaning over the driver’s side door, noticed a handgun placed between the driver’s seat and the door.

George alerted Yates to the presence of the firearm, drew his own handgun, opened the driver’s door and removed the weapon from Johnson’s vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile, police dispatch informed the officers that Johnson’s driver’s license was suspended in the third degree, and that he had an outstanding arrest warrant and a felony conviction. The officers then informed Johnson that he was being detained but not placed under arrest and advised him of his Miranda rights.

Eventually, Johnson was charged with unlawful possession of a firearm in
the first degree.

Before trial, Johnson moved to suppress the evidence of the gun found in his possession, contending that it was found attendant to his unlawful seizure. After an evidentiary hearing, the trial court granted Johnson’s motion. However, the judge did not make a determination as to whether Johnson was seized prior to the discovery and removal of the firearm, instead ruling that the encounter was a “social contact” and that “law enforcement had an insufficient basis to initiate a social contact.” The trial court further acknowledged that granting the motion to suppress essentially terminated the State’s case. The State appeals from the order granting Johnson’s motion.

COURT’S ANALYSIS & CONCLUSIONS

“In a constitutional sense, the term “social contact” is meaningless. The term has been adopted by lawyers and judges to describe circumstances that do
not amount to a seizure.”

The Court of Appeals further reasoned that term has been adopted by lawyers and judges to describe circumstances that do not amount to a seizure. It explained, for example, that a social contact is said to rest someplace between an officer’s saying ‘hello’ to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop).

“Fortunately, seizure jurisprudence is well-developed,” said the Court. It said the WA Constitution does not forbid social contacts between police and citizens. A police officer’s conduct in engaging a defendant in conversation in a public place and asking for
identification does not, alone, raise the encounter to an investigative detention. Not
every encounter between a police officer and a citizen is an intrusion requiring an
objective justification. Thus, the police are permitted to engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing.

“However, officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. The test is whether a reasonable person faced with similar circumstances would feel free to leave or otherwise terminate the encounter.”

The Court of Appeals held the search and seizure unlawful. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” (5) when the officers approached the vehicle and initiated a conversation with Johnson, they saw him seated with a female passenger and neither officer observed any signs of drug use, (6) Johnson was cooperative with Officer Yates and answered his questions, and (7) beyond the aforementioned hunch, the officers were aware of nothing that constituted a reasonable, articulable suspicion of potential criminal activity.

With that, the Court of Appeals held that the trial court did not err in granting
Johnson’s motion to suppress evidence of the subsequently discovered firearm.

My opinion? Good decision. Please read my Legal Guide titled Search and Seizure and contact my office if you a friend or family member are arrested for a crime and believe a questionable search or seizure happened. Hiring an experienced defense attorney is the first and best step toward justice.