Category Archives: Jury Trial

State v. Gunderson: Court Decides Prior “Bad Acts” of Domestic Violence Are Inadmissible

911 Call, Assault, Domestic Violence, Evidence, Jury Trial, law enforcement, police, Prior Bad Acts, Washington Court of Appeals, , ,

Prior Bad Acts of DV | Law offices of Alexander Ransom

Good opinion. In State v. Gunderson, the Court of Appeals decided a trial judge improperly allowed evidence of the defendant’s “prior bad acts” of Domestic Violence under Evidence Rule (ER) 404(b) at the defendant’s jury trial.

Here, the State charged defendant Daniel Scott Gunderson with Domestic Violence Felony Violation of a Court Order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she made no prior statements about the incident, let alone an inconsistent statement, the State sought to introduce evidence of a 911 Call to police and also Gunderson’s prior domestic violence against Ms. Moore to impeach her credibility and show that she was a “recanting” domestic violence victim who was unduly influenced by the defendant.

The trial judge admitted this evidence over Gunderson’s ER 404(b) objection. Gunderson argued that the trial court should have excluded evidence of his prior bad acts under ER 404(b).

Some background is necessary. Under ER 404(b), evidence of a defendant’s “Prior Bad Acts” is inadmissible for the purpose of proving a person’s character and showing that the person acted in conformity with that character. The same evidence may, however, be admissible for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

For evidence of prior bad acts to be admissible, a trial judge must ( 1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Here, the Court of Appeals reasoned that the probative value of the prior DV evidence was outweighed by its significant prejudicial effect. It stated the following:

“Much like in cases involving sexual crimes, courts must be careful and methodical in weighing the probative value against the prejudicial effect of prior acts in domestic violence cases because the risk of unfair prejudice is very high. To guard against this heightened prejudicial effect, we confine the admissibility of prior acts of domestic violence to cases where the State has established their overriding probative value, such as to explain a witness’s otherwise inexplicable recantation or conflicting account of events. Otherwise, the jury may well put too great a weight on a past conviction and use the evidence for an improper purpose.”

The Court of Appeals further reasoned that the trial court’s error was not harmless, and that it is reasonably probable that the admission of the two domestic violence convictions materially affected the outcome of the trial. Consequently, and given the above analysis the Court of Appeals revered the defendant’s conviction and remanded the case to a new trial.

My opinion? This decision was very reasonable, even-handed opinion which was effectively based on the law. The logic makes sense. Because the victim did not make conflicting statements and did not recant and the State did not articulate some other compelling justification, the probative value of this evidence is limited in comparison to its significant prejudicial effect. Not only was it manifestly unreasonable for the trial court to admit this evidence, it was also reasonably probable that the jury would have reached a different outcome. 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.

Jury Nullification Bill Gaining Momentum

Jury Trial, Legislation, , ,

What is Jury Nullification? | Common Legal Questions

Interesting. There’s pending legislation from Georgia on jury nullification.  Titled, The Fully Informed Jury Act of 2013, this bill would ensure jurors are informed of their rights, including the right to acquit defendants because the law was seen as unjust and/or unconstitutional. For those who don’t know, jury nullification in a criminal trial is what happens when a jury effectively nullifies the law in that specific case by acquitting the defendant, regardless of the weight of evidence against them.

My opinion? I hope the law passes. As a juror, it is your duty to protect our citizens by sending criminals to jail; however, if you believe the defendant is being prosecuted under an unjust law, you have the right, and the constitutional and moral obligation to protect the defendant from tyrannical government and acquit.

Does nullification happen often during trial? No. Although I’ve been instructed via the Prosecutor’s pretrial motions to NOT argue for nullification – and I’ve conducted numerous criminal jury trials for DUI, drug possession, assault, sex crimes, property crimes, etc. – I’ve never blatantly asked a jury to nullify anyway. First, I’ve always thought jurors would consider nullifying under their own volition, and without my behest.

Second, I’ve always feared that prosecutors and judges would probably frown upon my asking jurors to nullify. In short, jury nullification encourages jurors to not follow the law. This is big. After all, jury trials are a very expensive use of the Prosecutor’s and court’s time. And at the end of the day, these parties do not want to encourage citizens to acquit people on the basis that the law itself is unjust.

Still, and as the article illustrates, during the first century of the U.S. it was common practice for judges to inform jurors of this right as part of their instructions. Prior to the Civil War and thanks to jury nullification, many abolitionists and slaves  were safeguarded and set free by juries when prosecuted for participating in the Underground Railroad in violation of the Fugitive Slave Act. Jury nullification was also successful in acquitting defendants whoe were prosecuted during the alcohol prohibition era.

And when you think about it, a juror’s right to nullification, to be judge of both the facts and the application of the law, is enumerated in many State Constitution’s Right to trial by jury; which outline the number of jurors; selection and compensation of jurors. Most constitutions state, “In criminal cases, the defendant shall have a public and speedy trial by an impartial jury; and the jury shall be the judges of the law and the facts.”

Let’s see where this goes . . .

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. Grier: Ineffective Assistance of Counsel

Burglary, Ineffective Assistance, Jury Trial, Uncategorized, Washington Supreme Court, , ,

What Does Ineffective Assistance of Counsel Mean? - NJ Crimmigration

Interesting.

In State v. Grier, WA Supremes held that a defense attorney’s “all or nothing” approach, in which “lesser included” jury instructions were rejected, was a legitimate trial tactic and did not constitute ineffective assistance of counsel (IAC) under the state or federal constitutions. Trial courts are not required to provide lesser included instructions in the absence of a request for such instructions.

Defendant Kristina Grier was charged with Murder in the Second Degree following a fight she had with the victim Gregory Owen.  earlier, they were drinking with a group of people at Grier’s home.  Owen was alleged to have stolen several items from Grier, during the course of the evening.  Some of these items included three guns.  Grier and her son confronted Owen.  A fight broke out.  Unfortunately, a gun went off, killing Owen.

At trial, Grier’s defense attorney withdrew his earlier request for a jury instruction on the lesser offense of Assault.  As a result, the jury was not instructed on those offenses.  The jury convicted Grier of murder.  The case went up for appeal on the issue of whether Grier’s defense attorney was ineffective.  The Court of Appeals reversed Grier’s conviction.  They believed Grier’s attorney was ineffective because he failed to request instructions on the lesser included offenses.

For those unfamiliar with criminal law practice, 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.

The WA Supremes ruled Grier’s attorney’s decision to withdraw the lesser included offense instructions did not prevent her from raising an ineffective assistance claim.  The court also held that defense counsel’s “all or nothing” approach was a legitimate trial tactic and was not IAC.  The court vacated the Court of Appeals decision.

My opinion?  Interesting decision.  It’s difficult to play “Monday Morning Quarterback” and call a defense attorney’s trial tactics ineffective simply because the defendant lost at trial.  What if the defense attorney wanted the jury instruction and Grier was convicted?  Would she appeal the case anyway, and call her attorney ineffective because she was convicted on the lesser charge?  Good decision, WA Supremes.

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: Jury Selection Gone Wrong

Constitutional Rights, felony, Homicide & Manslaughter, Jury Trial, Washington Court of Appeals, Washington Supreme Court, , ,

How to weed out bad jurors during jury selection

Very interesting case. In State v. Irby, the WA Supreme Court held that a defendant’s right to be present during jury selection was violated when the trial judge emailed the attorneys and said he was inclined to release ten prospective jurors for hardship.

The defendant, Terrance Irby, was charged with first degree murder.  During jury selection, several members of the jury were disqualified by the judge and attorneys through email exchanges.  The communications occurred without the defendant being present.  Consequently, the Court of Appeals overturned Irby’s conviction.

The WA Supremes reasoned,  “In criminal prosecutions the accused shall have the right to appear and defend person, or by counsel”   under the due process clause of 14th Amendment of the U.S. Constitution and article I, section 22 of the WA Constitution.  Here, the State failed to show beyond a reasonable doubt that the removal of several potential jurors in Irby’s absence had no effect on the verdict.

My opinion?  Good decision.  The rule is clear as day.  Perhaps one of the jurors who was struck via email would have found Irby not guilty.  We’ll never know.  At any rate, Mr. Irby’s rights were clearly violated.

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.

In re. Personal Restraint of Swenson

Jury Trial, Uncategorized, Washington Court of Appeals, , ,

What is Judicial Recusal? Is it ethical for judges to recuse themselves? Current Affairs 2019 - YouTube

Interesting case.  In In re. Personal Restraint of Swenson, WA Court of Appeals decided a judge should disqualify themselves from sentencing a defendant’s case if the judge’s impartiality might be reasonably questioned, but absent evidence of actual or potential bias, an appearance of fairness claim is without merit.

Mr. Swenson was sentenced for several sex offenses by a judge who prosecuted him 20 years earlier on an unrelated juvenile case.  Swenson did not ask the judge to recuse herself at the sentencing hearing on the sex offenses.  Nothing in the record indicated the judge remembered Swenson.  The judge imposed the agreed recommended sentence.  Swenson did not appeal the conviction, but he later filed a Personal Restraint Petition asking for a new sentencing hearing.  he cited the Appearance of Fairness Doctrine and the Code of Judicial Conduct.

The Court of Appeals reasoned that a judge should be disqualified if their impartiality is called into question.  However, in this case there is no showing of actual or potential bias.  The mere fact that a judge prosecuted a defendant in the past does not disqualify the judge from hearing the case today.

Moreover, the Court argued there is no basis to reasonably question whether Swenson received a fair, impartial, and neutral hearing.  The record shows the judge followed the parties’ agreed sentencing recommendation and the sentencing hearing was fair and impartial.  And nothing in the record indicates that the sentencing judge was aware of her involvement as a prosecutor 20 years earlier in an unrelated juvenile case against Swenson.

My opinion?  Seems fair.  In practice, judges typically recuse themselves upon realizing they defended or prosecuted the defendant months/years ago.  However, if the judge can’t remember, and has not been reminded by the defendant of their previous involvement, then the judge has no duty to recuse themselves.  And as far as disqualifying a judge is concerned, there must be some showing that the judge was biased for or against the defendant.  It’s common sense.

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

State v. Werner: Who Let The Dogs Out?

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

HOA Senior Communities Should Ban Vicious Dogs | YourHub

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

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

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

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

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

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

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

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

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

Child Witness Competency

Child Competence, Constitutional Rights, felony, Jury Trial, Pretrial Investigations, Rape, Sex Crimes, Washington Supreme Court, , ,

Children Witnesses in the Criminal Courts: Recognizing Competence and Assessing Credibility

In State v. S.J.W., the WA Supreme Court held that a party challenging the competency of a child witness must show that the child is of unsound mind, intoxicated at the time of his production for examination, incapable of receiving just impressions of the facts, or incapable of relating facts truly.

S.J.W., a minor, was charged with a sex offense against a 14-year-old W.M., a developmentally delayed boy.  The State wanted W.M. to testify against S.J.W., and S.J.W. challenged W.M.’s competency to testify.  At the competency hearing, the trial judge concluded S.J.W. failed to meet his burden to establish that W.M. was not competent to testify.  The trial judge permitted W.M. to testify at the bench trial, and S.J.W. was convicted.

S.J.W. appealed.  The Court of Appeals affirmed S.J.W.’s conviction but held  that the party offering a child witness bears the burden to show the witness is competent to testify.  The Court of Appeals concluded that, although the trial judge erroneously placed that burden on S.J.W., this error was harmless.  The State challenges this holding, arguing that the trial judge properly placed the burden on S.J.W.  The WA Supremes agreed.

The WA Supremes reasoned that until 1986, former RCW 5.60.050 provided that all persons of suitable age could be witnesses except those of unsound mind, those who were intoxicated at the time of examination, and children under 10 who appeared incapable of receiving just impressions of the facts or of relating them truly.  State v. Allen, however, changed the notion.

The court in Allen concluded that the true test of the competency of a “young child” of “tender years” consists of (1) an understanding of the obligation to tell the truth, (2) the mental capacity at the time of the occurrence concerning the testimony, (3) sufficient memory to retain an independent recollection of the occurrence, (4) the capacity to express in words her memory of the occurrence, and (5) the capacity to understand simple questions about the occurrence.

In other words, all persons, regardless of age, are now subject to this rule because there is no longer any requirement that a witness be of suitable age or any suggestion that children under 10 may not be suitable witnesses.  A child’s competency is now determined by the trial judge within the framework of RCW 5.60.050, while the Allen factors serve to inform the judge’s determination.

My opinion?  I prefer having the 10-year old “cutoff age” when it comes to child testimony.  All to often, children are coached by biased adults.  I’ve conducted enough jury trials to know that children usually repeat whatever the trusted adult wants them to say.  Unfortunately, this court decision places an extra burden on attorneys – defense attorneys, undoubtedly – to show the respective child witness is incompetent to testify.

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.

City of Aberdeen v. Regan: When Unfound Accusations Violate Probation

Assault, Jury Trial, misdemeanor, Probation, Washington Supreme Court, , ,

Fighting a Probation Violation Allegation | Miami Criminal Lawyer

In City of Aberdeen v. Regan, the WA Supreme Court held that a defendant’s probation conditioned on having “no criminal violations of law or alcohol related infractions,” was properly revoked after the defendant was accused, but found not guilty, of fourth degree assault and criminal trespass.

In this case, Regan was convicted of fourth degree assault in Aberdeen Municipal Court and sentenced to 365 days in jail.  The court suspended 360 days of Regan’s sentence, issued 5 days jail,  and placed him on probation for 24 months.  The court conditioned Regan’s probation on his having “no criminal violations of law or alcohol related infractions.”

However, while on probation, Regan was charged with fourth degree assault and criminal trespass.  Regan was acquitted at a trial.  However, the city moved to revoke the suspension of his sentence asserting that he violated the condition of his probation.  Regan argued that the municipal court was collaterally estopped from finding he violated his probation condition in light of the not guilty verdict at trial.  The municipal court disagreed and issued 5 days of jail based on the criminal trespass charge.  Although the Superior Court found in Regan’s favor, the Court of Appeals reversed.

Some background is necessary.  Under WA law, in order to revoke probation, the judge need only be “reasonably satisfied” that the defendant committed the assault and/or the criminal trespass.  The defendant is not entitled to make the City/State prove allegations beyond a reasonable doubt.

Here, the WA Supremes reasoned that acquittal on criminal charges stops does not stop (or, more specifically, collaterally estop) a court from revoking parole for the same conduct.  The Court looked at the plain language of Regan’s probation conditions and flatly decided the conditions prohibited him from engaging in conduct that is proscribed by the criminal law.  “In no way do the definitions of “violate” or “violation” imply a proof or procedural requirement.”  Therefore, when a court conditions the suspension of a sentence on a probationer not violating the law, the context does not imply that a conviction is required.

My opinion? It’s really disturbing when judges revoke a defendant’s probation when s/he obtains criminal charges that haven’t been proven guilty in a court of law.  I’ve never understood that.  It’s a major flaw of the criminal justice system.

It seems more fair that someone who has invested the time and expense of fulfilling their probation requirements – meeting with probation officers, obtaining evaluations, making court payments, obtaining treatment, etc. – falls in danger of getting kicked off probation if police and/or prosecutors file B.S. charges that have not been proven in a court of law under the reasonable doubt standard.

Despite WA law, I believe that criminal charges must be proven in order to revoke a defendant’s probation.  The status quo simply gives the police and prosecutors too much power.

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. Doughty: WA Supremes Limit Scope of Terry Stops

Constitutional Rights, Drug Offenses, felony, Jail, Jury Trial, law enforcement, Methamphetamine, misdemeanor, police, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Washington Supreme Court, , ,

terry stop | Nevada Public Radio

In State v. Doughty, the WA Supreme Court held that a person’s two-minute visit to a suspected drug house at 3:20 in the morning is insufficient grounds for an investigative seizure.

Late one night, defendant Walter Moses Doughty approached a suspected drug house, stayed for two minutes, then drove away.  A police officer who observed Doughty’s approach and departure stopped Doughty on suspicion of drug activity.  This is typically called a Terry stop under Terry v. Ohio.

During this investigative seizure the officer ran a records check and, based on the results, arrested Doughty for driving with a suspended license.  Police found methamphetamine during a vehicle search incident to arrest.  At trial, he was convicted of Possession of Methamphetamine. The Court of Appeals confirmed the conviction.  The case ended up with the WA Supremes.

Some explanation of a Terry stop is necessary.  In justifying the particular intrusion/investigation, the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.  When reviewing the merits of an investigatory stop, a court must evaluate the totality of circumstances presented to the investigating officer.  The State must show by clear and convincing evidence that the stop was justified.

Under this analysis, the WA Supremes reasoned that a person’s presence in a high-crime area at a “late hour” does not, by itself, give rise to a reasonable suspicion to detain that person.  Similarly, a person’s “mere proximity to others independently suspected of criminal activity does not justify the stop.”

Although the State argued the circumstances warranted the search, the court reasoned that Police may not seize a person who visits a location — even a suspected drug house — merely because the person was there at 3:20 a.m. for only two minutes.  “The Terry-stop threshold was created to stop police from this very brand of interference with people’s everyday lives.”  Additionally, the United States Supreme Court embraced the Terry rule to stop police from acting on mere hunches.

Finally, the Court reasoned that Officer Bishop relied only on his own incomplete observations.  There was no informant’s tip and no furtive movement.  Bishop merely saw Doughty approach and leave a suspected drug house at 3:20 a.m.  Bishop had no idea what, if anything, Doughty did at the house.  Accordingly, these circumstances does not warrant intrusion into Doughty’s private affairs.

The WA Supremes reversed the Court of Appeals, suppress the evidence against Doughty, and vacated his conviction.

My opinion?  GREAT decision.  It’s always nice when our esteemed judges follow the law in undramatic fashion.  Clearly, the stop was unlawful and the evidence should have been suppressed by the trial court and court of Appeals. 🙂

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.

Racial Disparities In Jury Selection Still Exist

Constitutional Rights, Due Process, Jury Trial, Race & Law, Studies, , ,

How racism shapes jury selection - Vox

Racial exclusion in jury selection is still common, according to a study of practices in southern states.

In courtrooms across the United States, people of color are dramatically underrepresented on juries as a result of racially biased use of peremptory strikes,” the report by the Alabama-based Equal Justice Initiative (EJI) stated. “This phenomenon is especially prevalent in capital cases and other serious felony cases. Many communities have failed to make juries inclusive and representative of all who have a right to serve.”

The staff of the EJI looked closely at jury selection procedures in Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee.  they uncovered shocking evidence of racial discrimination in jury selection in every state.  They identified counties where prosecutors excluded nearly 80% of African Americans qualified for jury service.  They discovered majority-black counties where  capital defendants nonetheless were tried by all-white juries.  And they found evidence that some prosecutors employed by state and local governments were actually trained to exclude people on the basis of race on how to conceal their race bias.

In many cases, people of color were not only excluded, but also denigrated and insulted with pretextual reasons intended to conceal race bias.  African Americans were excluded because they appeared to have “low intelligence”; wore eyeglasses, were single, married, or separated; or were too old for jury service at age 43 or too young at age 28.  They were barred for having relatives who attended historically black colleges; for the way they walk; for chewing gum; and frequently, for living in predominantly black neighborhoods.

My opinion?  Batson v. Kentucky was supposed to eliminate race-based jury selection.  However, it appears the specter still exists.  It’s unbelievable to me ho today’s “race-neutral” explanations and the tolerance of racial bias by court officials has made jury selection for people of color a hazardous venture, where the sting of exclusion is accompanied by painful insults and injurious commentary.

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.