Category Archives: Rape

A Cell Phone “Ping” Is a Search

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

BACKGROUND FACTS

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

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

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

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

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

Muhammad was arrested and charged with rape and felony murder.

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

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

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

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

Violent Crime Decreases – Except Rape

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Excellent article by Jamiles Lartey and Weihua Li of the Marshall Project describes new evidence showing that despite the overall drop in violent crime, rape rises for the sixth straight year.

The 2018 National Crime Victimization Survey (NCVS), released Tuesday, is managed by the Bureau of Justice Statistics at the U.S. Justice Department. According to the authors, the data suggests that the violent crime rate in the U.S. remains on a decades-long downward trend, falling by 3.9 percent in 2018. Overall, the violent crime rate has plunged by more than 50 percent since the early 1990s. The drops came across categories of violent offenses, including murder, non-negligent manslaughter and robbery, and property crimes like burglary, larceny and vehicle thefts, while aggravated assault numbers remained about flat.

However, rape and sexual assault crimes are increased slightly for 2018. This follows consistent trends that sexual assault crimes have risen for the last six years.

So why the increase?

Apparently, in 2013, the FBI changed its outdated parameters of rape—then defined as the forcible “carnal knowledge of a female”—to a more modern definition structured around consent, rather than force. Ever since, the rate has been on a steady surge, up more than 18 percent in that period.

“It’s not yet clear why rapes have risen so swiftly. It’s a notoriously underreported crime and many have theorized that the changing social atmosphere, including the #metoo movement and increased awareness around campus rape, may be prompting survivors to report at a higher rate.”

Kristen Houser, a spokesperson for the National Sexual Violence Resource Center, said another possible outcome of that social and cultural change is assault survivors being better able to simply understand that what they’ve experienced was in fact a crime.

“We may well have more ability to recognize experiences for the crimes that they are and be able to name them, which I don’t think has been true historically. And that’s a result of more people talking about it, reporting on it, reading it, etc.,” Houser said.

Contact my office if you, a friend or family member are charged with a sexual assault. These charges are debilitating. Simply being charged negatively impacts reputations, employment opportunities and freedom. Therefore, it’s imperative to hire an experienced and effective defense attorney who will conduct proactive investigations, argue pretrial motions and defend your rights at trial.

Appearance of Fairness

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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!

Rape Kit Backlog Resolved

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Survivors of sexual assaults in Washington state can now track the progress of their kits being analyzed through a new online portal.

The Seattle Post-Intelligencer reports that the Washington State Patrol has implemented this week the online tracking system for sexual assault kits to allow survivors, as well as lawyers, medical staff and law enforcement to follow the testing process.

The state completed an inventory of untested sexual assault kits last month, counting 6,460 kits that had not yet been submitted by law enforcement agencies across the state for lab testing. The oldest untested kit dated back to 1982.
Larry Hebert, director of the patrol’s forensic laboratory services bureau, says a kit can take four to six weeks to process.
My opinion? This is a great development in the right direction. Alleged victims who believed they were sexually assaulted should be encouraged to get rape kit examinations as soon as possible; and should also have assurances that the evidence will be handled quickly. Oftentimes, a sexual assault allegations come down to  “He said / She said” arguments with very little to virtually no proof of sexual assault. Rape kit exams help solve this problem.
Please contact my office if you, a friend or family member are charged with sexual assault. It’s imperative to find a qualified and competent defense attorney who can navigate the investigations, argue pretrial motions, conduct witness interviews and possibly go to trial.

Sexual Assault Kits Remain Untested

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The Attorney General’s Office has completed its inventory of Washington state’s unsubmitted sexual assault kits, finding 6,460 kits that have not yet been submitted for lab testing by local law enforcement agencies.

A sexual assault kit is a collection of evidence gathered from a survivor by a medical professional, usually a specially trained sexual assault nurse examiner. A crime lab then tests the evidence for DNA that will help law enforcement find a perpetrator.

This month, Attorney General Bob Ferguson will request the remainder of a federal grant that funds sexual assault kit testing. The Attorney General’s Office (AGO) is currently reviewing the inventory data and working with the Crime Lab to develop a plan for testing the kits, which potentially provide DNA evidence for sexual assault investigations.

The AGO obtained inventory information from 208 law enforcement agencies across Washington state. These 6,460 kits were collected and booked into evidence by local law enforcement, but were not submitted to a crime lab for a DNA analysis. Consequently, they remain in evidence storage facilities around the state.

Many of these unsubmitted kits have been in an evidence storage facility for years. The oldest untested kit reported by local law enforcement to the AGO dates back to 1982.

“Sexual assault survivors deserve justice,” said Ferguson. “Each sexual assault kit tells a story from a survivor that must be heard.”

The inventory is part of the AGO’s Sexual Assault Kit Initiative project. In October 2017, the AGO won a grant for $3 million from the U.S. Department of Justice to assist law enforcement with testing and investigating untested sexual assault kits. The grant process, part of the Bureau of Justice Assistance Sexual Assault Kit Initiative, was highly competitive.

The grant funds a team of investigators within the AGO dedicated to the project. Attorney General Ferguson plans to dedicate $1.5 million to pay for the testing of kits – the maximum allowable under the grant.

So far, the AGO has received 25 percent of the $3 million grant in order to inventory the kits. Now that the inventory of unsubmitted kits is complete, Attorney General Ferguson can request the remainder of the funds from Bureau of Justice Assistance.

There are two types of sexual assault kit backlogs in Washington state and across the country. The first is the “unsubmitted” sexual assault kit backlog, which consists of kits that sit in a law enforcement evidence storage facility because a DNA analysis was never requested. With today’s announcement, Attorney General Ferguson took the first key step in eliminating Washington’s unsubmitted kit backlog.

The second type of backlog occurs in crime lab facilities, and consists of “backlogged” sexual assault kits that have been submitted, but have not yet been tested.

The State of Washington has made progress on processing its backlog of sexual assault kits over the past several years, but additional work remains. In 2015, led by Representative Tina Orwall (D-Burien), the Legislature gave funds to the Crime Lab to reduce the backlog.

According to the Washington State Patrol, more than 3,300 backlogged kits have been submitted to the Crime Lab using this legislative funding. Of those kits, about 1,700 have been tested and about 1,100 are currently in the testing process. These totals do not include the 6,460 unsubmitted kits Ferguson inventoried that are held by local law enforcement.

In Washington state, the State Patrol Crime Lab oversees the testing of all of the state’s DNA evidence. The Crime Lab is outsourcing the sexual assault kits to a private lab to complete the DNA testing. The Crime Lab must conduct a peer review of all evidence tested by outside labs and is the only agency permitted to upload DNA profiles into the national forensic DNA database, known as CODIS.

Once the kits are tested, local law enforcement can use DNA to reopen cold cases. Testing these kits will identify serial rapists, link cases across the country, provide critical links that could solve homicide cases and provide answers to victims and their families.

My opinion? I’m impressed our legislature is appropriating more funding toward testing rape kits. Forensic evidence such as rape kits benefit everyone, including the defendant. The evidence gives information beyond “he said / she said” allegations. Rape kits analyze DNA evidence, reveal the location and extent of injuries/trauma sustained from alleged sexual assaults and may contain notes from interviews with sexual assault nurse practitioners. All of this evidence helps the investigatory process.

Outrageous Police Misconduct

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In State v. Solomon, the WA Court of Appeals held that the trial court properly dismissed a charge of attempted rape of a child for outrageous police misconduct, where an officer, posing as a fictional 14-year-old girl sent the defendant nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited the defendant to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the court of four days.

BACKGROUND FACTS

In this matter, a law enforcement officer anonymously published an advertisement on an online Craigslist classifieds platform reserved for those over the age of 18 and indicated that she was “a young female” seeking an individual interested in a casual sexual encounter. The defendant Mr. Solomon responded to the advertisement. Thereafter, the police officer assumed the guise of a fictional 14-year-old girl and sent Solomon nearly 100 messages laden with graphic, sexualized language and innuendo and persistently solicited him to engage in a sexual encounter with the fictional minor, notwithstanding that he had rejected her solicitations seven times over the course of four days.

Mr. Solomon was charged with one count of communication with a minor for immoral purposes, one count of commercial sex abuse of a minor, and one count of attempted rape of a child in the third degree.

Before trial, Solomon moved to dismiss the charges against him, arguing that the State had engaged in outrageous governmental misconduct in violation of his due process right to fundamental fairness.

The trial court herein found that the actions of the law enforcement officer constituted outrageous misconduct in violation of Solomon’s right to due process and dismissed the charges against him. The State appealed.

ISSUE

Whether the trial court abused its discretion in dismissing the case due to outrageous conduct of the investigating law enforcement officer.

COURT’S ANALYSIS & CONCLUSIONS

As precedent, the Court of Appeals applied the State v. Lively “totality of the circumstances evaluation,” which identifies five factors to be considered by a trial court deciding issues of whether law enforcement engaged outrageous conduct: (1) whether the police conduct instigated a crime or merely infiltrated ongoing criminal activity, (2) whether the defendant’s reluctance to commit a crime was overcome by pleas of sympathy, promises of
excessive profits, or persistent solicitation, (3) whether the government controls the criminal activity or simply allows for the criminal activity to occur (4) whether the police motive was to prevent crime or protect the public, and (5) whether the government conduct itself amounted to criminal activity or conduct repugnant to a sense of justice.

Here, the Court of Appeals agreed with the trial court’s analysis that Solomon’s reluctance to commit the crime was manifested by his repeated—seven times—attempts to discontinue the conversation. Furthermore, the Court of Appeals agreed that the State had engaged in persistent solicitation of Solomon, given that the detective continued to solicit Mr. Solomon each of the seven times that he sought to withdraw and, in addition, sent the majority of the over 200 messages exchanged between the two parties.

Additionally, the Court of Appeals agreed with the trial court that the investigating law enforcement detective controlled the criminal conduct both by initiating the interaction between her and Solomon and by stringing him along over the course of the four days of exchanges.

“In this way, the court determined that the detective’s use of graphic and highly sexualized language amounted to a manipulation of Solomon that was repugnant to a sense of justice.”

“In ruling to dismiss the charges, the trial court did not adopt a view that no reasonable judge would take,” said the Court of Appeals. “Given the court’s finding that law enforcement had initiated and controlled the criminal activity, persistently solicited Solomon to commit the crimes so initiated, and acted in a manner (through the use of
language and otherwise) repugnant to the trial judge’s view of the community’s
sense of justice, the trial court’s determination was tenable.

“Accordingly, the trial court did not abuse its discretion by ordering that the charges against Solomon be dismissed. There was no error.”

With that, the Court of Appeals affirmed the dismissal of Mr. Solomon’s charges.

Please contact my office if you, a friend or loved one face criminal charges which are stemmed by questionably actions of law enforcement officers. It’s extremely important to hire competent defense counsel who willing to argue compelling motions to dismiss similar to defense counsel’s motion in this case.

Silver Platter Doctrine

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In State v. Martinez, the WA Court of Appeals held that the defendant’s computer hard drive which Texas police seized in Texas pursuant to a search warrant was lawfully searched by the Washington State Patrol without a Washington search warrant under the silver platter doctrine.

BACKGROUND FACTS

Carlos Martinez began working at the Monroe Police Department in 1989. He worked in several capacities, including as a Drug Abuse Resistance Education (D.A.R.E.) program instructor. While working as a D.A.R.E. instructor, Martinez met A.K., who was in fifth grade at the time.

Beginning in 2001 or 2002, when A.K. was 13 or 14 years old, she began baby-sitting Martinez’s two young children.  A.K. also came to the Martinezes’ house when she was not baby-sitting. She would sometimes show up unannounced. She would help Martinez with chores and do her schoolwork at the house. At the time, Martinez was married to his then-wife Julie West.

Apparently, Martinez began touching A.K. in a sexual manner when she was 14. He also set up a video camera in the bathroom and digitally recorded her when she used the facilities.

Ms. West went on vacation. During that time, A.K. stayed at the family home. When Ms. West returned from vacation, she discovered a love note from A.K. to Martinez. She also discovered a video recording that Martinez had made of A.K. getting out of the shower and stored on the family computer. West confronted Martinez about the recording. He said he wanted to see if A.K. had cut herself on the kitchen knife as she had claimed. West claimed that when she asked Martinez why he still had the recording on the computer, he responded that it was “nice to look at.”

Not long after this, A.K. and her family moved from Monroe to Eastern Washington. Martinez and A.K. kept in touch. Martinez claims that in February 2007 they began a consensual sexual relationship when A.K. was 18 years old. In fall 2009, the Army recalled Martinez to active duty and stationed him in San Antonio, Texas. A.K. moved to Texas to be with him. They lived together for a short time.

After their relationship deteriorated in October or November 2011, Martinez gave A.K. the video recordings that he made of her in his bathroom in 2004. A.K. testified that Martinez told her he wanted to watch the tapes one last time and masturbate to them. She claimed he asked her to touch him as well. A short time later, A.K. contacted the Texas police to turn over the tapes. She also told the Texas police that she began an intimate relationship with Martinez some time before she was 16. Later, she contacted WSP.

The Texas police obtained a warrant to search Martinez’s home and seize his laptop computer and digital media storage devices. Then, a grand jury was convened in Texas to consider a possession of child pornography charge. But the grand jury refused to indict, returning a “no bill.” The case was dismissed. Texas police made a mirror image of Martinez’s computer hard drive and, at WSP’s request, sent it to WSP. Without obtaining a separate warrant, WSP searched this mirror image hard drive. Texas police also sent WSP two actual laptop computers and hard drives seized from Martinez. After obtaining a warrant, WSP searched those items.

The State initially charged Martinez with two counts of voyeurism, two counts of child molestation, one count of rape of a child in the third degree, and one count of possession of depictions of a minor engaged in sexually explicit conduct. Later, the State dismissed the molestation and rape charges. It tried Martinez on only one count of voyeurism and one count of possession of depictions of a minor engaged in sexually explicit conduct.

The jury found Martinez guilty on both counts. Because the voyeurism charge occurred outside the statute of limitations, the trial court dismissed that count and convicted him on only the possession count.

ISSUES

The Court of Appeals accepted review on the issues of (1) whether the warrantless search of Martinez’s computer hard drive was lawful when Texas police – and not WA law enforcement – searched the computer, and (2) whether spousal privilege applies to suppress the testimony of his ex-wife at trial.

SHORT ANSWER

The Court of Appeals held that (1) the silver platter doctrine allowed the Washington State Patrol to later examine the hard drive without a warrant, and (2) because Martinez acted
as a guardian to the victim, the spousal privilege does not apply here.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that Fourth Amendment guarantees the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.  If a government action intrudes upon an individual’s “reasonable expectation of privacy,” a search occurs under the Fourth Amendment. Furthermore, the Washington Constitution provides greater protection of a person’s privacy rights than does the Fourth Amendment. Article 1, section 7 of the Washington Constitution focuses on those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass absent a warrant.

Silver Platter Doctrine

Under the Silver Platter Doctrine, however, evidence lawfully obtained under the laws of another jurisdiction is admissible in Washington courts even if the manner the evidence was obtained would violate Washington law. Evidence is admissible under this doctrine when (1) the foreign jurisdiction lawfully obtained evidence and (2) the forum state’s officers did not act as agents or cooperate or assist the foreign jurisdiction.

“Martinez does not dispute that Texas lawfully obtained the hard drive,” reasoned the Court of Appeals. “And he does not challenge the trial court’s findings that Washington State Patrol (WSP) had no involvement in obtaining or serving the Texas warrant and that Texas police did not act as agents of WSP when they obtained or served the warrant.” Thus, under the silver platter doctrine, the evidence was admissible.

Next, the Court of Appeals rejected Martinez’ arguments that the silver platter doctrine does not apply here because the Texas officers did not conduct any search that would be unlawful in Washington. “The doctrine requires that the State show only two things: (1) the search was lawful in Texas and (2) the Washington officers did not act as agents for Texas or cooperate or assist Texas in any way,” said the Court. “Because the State proved this, the doctrine applies.”

Search Warrant

Next, Martinez argued that the warrant issued in Washington allowing the WSP to search his laptop computers and hard drives was overbroad. In response, the Court of Appeals reasoned that the Fourth Amendment provides that “no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Furthermore, the search warrant particularity requirement helps prevent general searches, the seizure of objects on the mistaken assumption that they fall within the issuing magistrate’s authorization, and the issuance of warrants on loose, vague, or doubtful bases of fact.

“When a search warrant authorizes a search for materials protected by the First Amendment, a greater degree of particularity is required, and we employ a more stringent test,” said the Court. “While the First Amendment presumptively protects obscene books and films, it does not protect child pornography involving actual minors.” Also, the Court of Appeals raised and dismissed Martinez’ arguments that the warrant was invalid for other reasons as well.

Spousal Privilege

The Court of Appeals addressed Martinez’ arguments that the trial court mistakenly admitted the testimony of his ex-wife regarding a conversation she shared with Mr. Martinez’ video of A.K. as being “nice to look at.” The Court reasoned that generally, a current or former spouse cannot be examined about confidential communications made during the marriage without the consent of the other spouse. It also explained that the marital privilege rule tries to encourage the free interchange of confidences between husband and wife that are necessary for mutual understanding and trust. “But in some situations the policies that underlie the right to invoke a testimonial privilege are outweighed by the suppression of truth that may result,” said the Court. “Thus, this spousal privilege does not apply in a criminal proceeding for a crime committed against a child for whom the spouse is a parent or guardian.”

The Court reasoned that here, West merely repeated statements by Martinez and did not comment about her belief in Martinez’s guilt. “We agree that these facts are sufficient for the jury to conclude that Martinez kept the recording for the purpose of sexual stimulation and that West’s testimony that Martinez said the recording was ‘nice to look at’ could not have materially affected the outcome of the trial,” said the Court.

Finally, the Court of Appeals raised and dismissed Martinez’ arguments that there was prosecutorial misconduct and ineffective assistance of counsel. “The Prosecutor’s general references were unlikely to have affected the jury’s verdict in light of the other incriminating evidence,” said the Court. Furthermore, Martinez does not show that his counsel’s failure to object to the Prosecutor’s case presentation was unreasonable and/or was not strategic.

With that, the Court of Appeals upheld Martinez’ conviction and sentence.

ER 404(B) and “Lustful Disposition”

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In State v. Gonzales, the WA Court of Appeals held that a trial court did not commit error in admitting evidence that, after the charged conduct, the victim observed the defendant masturbating while holding the victim’s bra.

BACKGROUND FACTS

When J.G. was six years old, she and her younger brother moved in with their grandfather, defendant Eddy Gonzales and his wife. This sexual abuse ended when J.G. was ten or eleven years old. But after the molestation stopped, J.G. once encountered Gonzales masturbating in his room while holding her bra.

When J.G. was eleven years old, she moved out of the house. She informed family members of the molestation. They, in turn, contacted police; who later arrested Mr. Gonzales.

Gonzales was charged with first degree rape of a child and first degree child molestation. The State later added a second count of first degree child rape and charged him with tampering with a witness.

At trial, the Court admitted testimony that he masturbated while holding J.G.’s bra.

The jury acquitted Gonzales of one count of first degree child rape, but found him guilty of the remaining charges. Among other issues not discussed here, Gonzales appealed on the issue of whether the trial court wrongfully admitted that evidence. He argued this uncharged misconduct goes to propensity and should be excluded under ER 404(b). He argues the trial court wrongfully admitted this testimony to show his “lustful disposition” toward J.G., particularly because it occurred after the charged conduct.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals described the rules of evidence which allow or disallow the evidence from getting to the jury. In short, (ER) 404(b) provides that evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for “other purposes.”

Consequently, the Court reasoned that Washington courts have consistently held one such other purpose is evidence of collateral sexual misconduct when it shows the defendant’s lustful disposition toward the victim. This is because a lustful disposition makes it more likely that the defendant committed the crime charged. Evidence of uncharged sexual misconduct occurring before or after the charged acts is admissible. In an ER 404(b) analysis, the trial court must balance and weigh probative value against the potential for unfair prejudice.

Second, the Court of Appeals applied the law to its reasoning. It said that here, the trial court admitted J.G.’s testimony that she saw Gonzales masturbating while holding her bra. The trial court reasoned that Gonzales’s behavior was sexual conduct that showed lustful disposition toward J.G. The trial court also found that the probative value of the evidence was not outweighed by unfair prejudice.

“The trial court did not abuse its discretion,” said the Court of Appeals. “Gonzales’s action shows a sexual desire for J.G. Thus, it goes toward an ‘other purpose’ as provided under ER 404(b).”

Third, the Court of Appeals rejected Gonzales’s arguments that any uncharged sexual misconduct is unfairly prejudicial in a sex abuse prosecution. It reasoned that the admitted evidence was not unfairly prejudicial because his act was not more inflammatory than the charged crime, and J.G. was only indirectly victimized by it.

Finally, the Court of Appeals rejected Gonzales’s arguments that the admitted testimony had diminished probative value because the incident occurred after the alleged abuse. The Court of Appeals reasoned that an act occurring after the charged abuse is relevant to lustful disposition. It was not an abuse of discretion to conclude that the probative value of this testimony was not outweighed by unfair prejudice.

With that, the Court of appeals affirm the admission of the “lustful disposition” testimony under ER 404(b) and upheld Mr. Gonzalez’s conviction.

My opinion?

It’s tricky to predict whether judges will admit or deny evidence when the evidence is offered for “other purposes” under ER 404(b). Judges have lots of discretion an how and where the rule applies. Still, judges must follow the doctrine of stare decisis and make rulings which are consistent existing case law when rendering decisions.

Fortunately, I’m quite familiar with the case law on this subject. Please contact my office if you, a friend or family member faces charges and the State wants to offer evidence of the offender’s behavior which falls outside the scope of the immediate facts that are alleged. Perhaps a well-argued pretrial motion to suppress evidence could change the complexion of the case and result in reducing or dismissing the charges.

Bla Bla Bla

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In State v. Boyd, the WA Court of Appeals held that a prosecutor improperly disrespects defense counsel by using “bla, bla, bla” to describe opposing counsel’s argument. This phrase is both disrespectful and dismissive.

BACKGROUND FACTS

In February 1998, when he was 23 years old, Jayson Boyd had sex with a 15 year old. In 1999, he pleaded guilty to rape of a child in the third degree. He was required to register as a sex offender under RCW 9A.44.130 and RCW 9A.44.140. Since his conviction in 1999, Boyd has been convicted of failure to register as a sex offender three times.

Boyd is homeless, has a ninth or tenth grade education, and is mentally ill. At the time of his crime in 1998, homeless sex offenders were not required to register as sex offenders because they did not have addresses. The legislature subsequently amended the statute to require homeless sex offenders who lacked a fixed address to update the county sheriff weekly, in person, of their whereabouts.

Boyd largely complied with the registration requirement but pleaded guilty to
crimes of failure to register in 2009, 2010, and 2013.

In March 2015, the State charged Boyd with failure to register as a sex offender between January 27, 2015 and February 10, 2015.  The court ordered a competency evaluation after Boyd rambled incoherently during a pretrial hearing. A month later, after Boyd was found competent to stand trial, the court held another hearing. At that hearing, the court issued a scheduling order, which Boyd signed, setting the next hearing date for November 6, 2015. While explaining the order to Boyd, however, the court misspoke—it told Boyd that he needed to appear on December 6, 2015. After Boyd failed to appear on November 6, 2015, the Prosecutor added a charge for bail jumping.

During closing arguments, the Prosecutor appeared to have given a mocking and deragatory tone. After the jury retired to deliberate, Boyd’s defense attorney  moved for a mistrial based on prosecutorial misconduct:

“During the prosecutor’s first closing argument, it was normal in tone, very even and level. And the rebuttal closing argument after I had given my closing, she started out and then repeatedly throughout that closing argument, either pretending she was me or Mr. Boyd, but was kind of in a sing-song tone, a complaining child-like type tone of voice when mentioning the barriers that my client faces as a homeless person and saying “bla, bla, bla,” and this was something that was repeated throughout the closing argument. And so I’d be making a motion for a mistrial based on—based on the prosecutor’s tone of
voice during the closing argument.”

The trial court denied the motion, explaining: “I did not hear what I consider to be a mocking or derogatory tone.” While the trial court agreed that the prosecutor used a different tone than her normal speech tone, it concluded that “having listened to many, many, many closing arguments, there was nothing in the tone that I heard that was derogatory or mocking or anything that grabbed my attention as being out of line, inappropriate or unprofessional.”

Boyd was convicted by a jury as charged and sentenced to 45 months in prison.

THE APPEAL

On appeal, one of the issues was whether the trial court abused its discretion by denying Boyd’s motion for a mistrial based on prosecutorial misconduct.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals said that the inquiry on prosecutorial misconduct consists of two prongs: (1) whether the prosecutor’s comments were improper and (2) if so, whether the improper comments caused prejudice. To show prejudice, the defendant must show a substantial likelihood that the prosecutor’s statements affected the jury’s verdict. The defendant bears the burden of showing that the comments were improper or prejudicial.

Here, the prosecutor’s references to Boyd’s “barriers” and chaotic life are not improper remarks about his homelessness, poverty, or mental illness because they rebut the very defense advanced by Boyd’s counsel—that complying with the law was “too much” for him because of his “barriers.” But we find that the prosecutor impugned defense counsel by stating “And again, Boyd’s Defense Counsel talks about chaos in his life, barriers, bla, bla, bla. No evidence of that.”

“Using ‘bla, bla, bla’ to refer to an opposing counsel’s argument is both disrespectful and dismissive. Although the statement does not imply deception or dishonesty like ‘crock,’ it implies that the arguments are unworthy of consideration and may be dismissed offhand. We find the statement was improper.”

Nevertheless, the Court of Appeals was not convinced that the Prosecutor’s statements during trial affected the jury’s verdict. “The court did not abuse its discretion by denying Boyd’s motion for a mistrial,” said the Court, and upheld Boyd’s conviction and sentence.

THE DISSENT

Justice Becker’s dissent focused on how poverty issues negatively impact justice as homelessness applies to offenders who have a duty to register:

“Our (failure to register) statute has grown steadily harsher, especially as applied to homeless offenders. I believe it is time to reconsider the ex post facto analysis of the statute in light of the changes since State v. Ward. I would join the jurisdictions holding that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. I would reverse Boyd’s conviction and remand for dismissal with prejudice.”

My opinion? “Bl bla bla” issues aside, I agree with the dissenting Justice Becker when she says that frequent in-person reporting requirements render a registration statute so punitive that applying it retroactively violates the constitution. Being homeless is difficult enough by itself. Requiring homeless people to register under Washington’s rigorous “Duty to Register” statute is incredibly difficult, if not nearly impossible, for homeless people to follow and obey. As a a result, the law unequally punishes sex offenders for being homeless. That’s simply not fair.

Glaring During Trial

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In State v. Sagethe WA Court of Appeals held that a trial court did not abuse its discretion by denying the defendant’s motion for a mistrial based upon the victim’s behavior – glaring at the defendant – when called to the stand.

BACKGROUND FACTS

Jonathan Sage faced four counts of second degree rape of a child. He was alleged to have engaged in sexual acts with minors J.M. and E.M., and came into contact with the two brothers because he owned a company at which J.M. and E.M.’s mother worked.

The case proceeded to trial. During proceedings, the victim E.M. glared at Sage as he entered the courtroom. Sage’s defense attorney objected and requested an immediate mistrial. He described the interaction as follows:

“E.M. walked past defense counsel and hissed at the Defendant, bent down, and made an aggressive stare. As best as I could tell, the jurors looked horrified. Their reaction is clear that the stance or that moment is going to live in their minds as opposed to what he
testifies to. My client has a right to a fair trial, to be presumed innocent, and I don’t know that he can get a fair trial with this jury after that behavior.”

Although the trial judge sustained defense counsel’s objection, the court denied the motion for mistrial and instructed the jury to disregard E.M.’s behavior.

The jury convicted Sage on all four counts and, by special verdict, found the alleged aggravating circumstances had been established. The court concluded the aggravating circumstances were substantial and compelling reasons to impose an exceptional sentence.

Sage appealed his conviction and his exceptional sentence under the argument that his motion for a mistrial should have been granted because E.M.’s courtroom behavior prejudiced the jury.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals reasoned that a trial court should only grant a mistrial when the defendant has been so prejudiced that nothing short of a new trial can ensure that the defendant will be fairly tried. To determine the effect of the irregularity leading to the request for a mistrial, the court examines: (i) its seriousness; (ii) whether it involved cumulative evidence; and (iii) whether the trial court properly instructed the jury to disregard it.

“Here, E.M. entered the courtroom and glared at Sage,” said the Court of Appeals. “The trial court denied Sage’s motion for mistrial and entered a detailed ruling on the record. Unlike a verbal outburst or threatening gesture, E.M. glared at Sage. The court gave a curative instruction. E.M. did not repeat the behavior after the trial court instructed the jury to disregard the behavior,” said the Court of Appeals. “We conclude the trial court did not abuse its discretion.” Also, the Court of Appeals upheld Sage’s exceptional sentence based on aggravating factors.

With that, the Court upheld Sage’s conviction and exceptional sentence.