Category Archives: Robbery

Wielding Inoperable Firearm During Crime is Still Unlawful

Bellingham Defense Attorney, Firearm, Jury Trial, Kidnapping, Robbery, Sentencing, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Image result for holdup with gun

In State v. Tasker, the WA Court of Appeals Division III held that although the State must prove to the jury that the defendant possessed a real firearm at the time of the crime, the State is not required to prove that the firearm was operable.

On June 13, 2013, Gloria Campos-White was sitting in her parked car outside of her daughter’s middle school waiting for her daughter’s basketball practice to finish. A man walked up to her open driver’s side window, pointed a gun in her face, and demanded she give him her purse. She complied, telling him as she handed him the purse that she did not have any money.

After the man had her purse, he got into the back seat and ordered Ms. Campos-White to drive. He still had the gun when he entered the car, and that although she did not see it again, at one point when they were actually driving she thought she heard the clicking of something behind her head.

The man gave directions as she drove, but he did not tell her where they were going. She did not know where they were. Not knowing his intentions, Ms. Campos-White felt desperate to get away. Without slowing her car, she waited for a gap in oncoming traffic, unbuckled her seatbelt, opened the car door, and jumped out of the moving vehicle. Her car soon struck a bank on the side of the road and flipped on its side. People nearby heard the crash. They stopped traffic and attended to Ms. Campos-White. They saw a man climb out of a passenger side door of her car and run off. Ms. Campos-White sustained a severe concussion that led to the loss of her ability to taste or smell.

Ultimately, based on video surveillance recorded by the middle school, Ms. Campos-White’s identification, and physical evidence recovered from the scene of the crash, Christopher Tasker was arrested and charged with first degree kidnapping, attempted first degree robbery, and first degree unlawful possession of a firearm. The State sought firearm enhancements in connection with both the first degree kidnapping and the attempted first degree robbery charges.

At trial, Ms. Campos-White identified Mr. Tasker as the man who kidnapped and attempted to rob her. She described the gun that Mr. Tasker used, explaining it was a dark color and small enough to be held with one hand. She admitted during the State’s examination that she did not know much about guns or firearms, and testified that she had “never seen a gun in real life.” She also admitted that she would not know the difference between a revolver and semiautomatic handgun by name, but knew that they looked different. She never wavered from her testimony that Mr. Tasker had been armed with a gun, however. Asked on cross-examination whether there was any chance it could’ve been anything besides a handgun, she answered, “No.”

The defense devoted its entire closing argument to urging the jury that there was reasonable doubt whether Mr. Tasker had been armed with a real firearm. It emphasized Ms. Campos-White’s nonspecific description of the gun, her inexperience with firearms, and an asserted hesitancy in her testimony. Nevertheless, the jury found Mr. Tasker guilty of all charges and imposed the deadly weapon sentencing enhancements.

Defense Counsel brought a post-trial motion to set aside the jury’s verdict on the firearm possession findings.  The trial court informed the parties that it had concluded after reading cases cited by the parties that Division Two of the Court of Appeals “seems to focus more on the question of has the prosecution proven that the gun was operable,” while Division One “appears to focus more on the question of was the gun real,” a “slightly different question.” The court denied Defense Counsel’s motion, “recognizing that it’s a razor thin issue and it could go either way on appeal.”

Mr. Tasker’s sentences on his three convictions run concurrently, with the longest being his 144 month sentence on the first degree kidnapping count. The firearm enhancement terms (60 months for the kidnapping and 36 months for the attempted robbery) run consecutive to his base sentence, increasing his sentence by eight years.

Mr. Tasker appealed on the argument that the State failed to prove he wielded an operable firearm during the crimes. In other words, the question was whether evidence of operability at the time of the crime is required because the statutory definition of “firearm” includes language that it is a weapon or device “from which a projectile or projectiles may be fired.” Again, he argued, the firearm was inoperable.

Ultimately, the Court of Appeals was not persuaded. Instead, it found that a reasonable juror would have found sufficient evidence that Mr. Tasker wielded a firearm.

Here, the State presented sufficient evidence of what it was required to prove: that the gun Mr. Tasker used in the assault was a gun “in fact,” rather than “a gunlike but nondeadly object. Mr. Tasker pointed the gun at Ms. Campos-White’s face in demanding her purse and used it to advance a kidnapping. Visibility was good; the crime occurred in daylight on a June afternoon. Ms. Campos-White saw the gun at close range and was unwavering in her testimony that it was a gun.

While she forthrightly admitted to little experience with guns “in real life,” she was old enough, as the mother of a middle schooler, to have seen guns in photographs, on the news, in television programs and in movies. The clicking noise she described hearing behind her head was consistent with Mr. Tasker’s use of a real gun. Collectively, the evidence was sufficient to establish the gun met the definition of a “firearm” under RCW 9.41.010(9).

Consequently, the Court of Appeals affirmed the convictions.

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. Mayer: Officer Gives Confusing Miranda Warnings

Bellingham Defense Attorney, Constitutional Rights, Due Process, Exclusionary Rule, felony, law enforcement, Miranda, Robbery, Self-Incrimination, Violent Crime, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Mayer, the WA Supreme Court decided that a deputy sheriff inadequately advised the defendant of his Miranda rights when he initially told the defendant that a lawyer would be appointed for him prior to questioning if he could not afford one but also said that no lawyer would be appointed for him unless he was arrested, jailed, and taken to court.

Here, defendant Nicholas Mayer was suspected of robbing KC Teriyaki,  a casual restaurant in Salmon Creek, while the employees were closing the restaurant for the day. The masked gunmen pushed one of the employees inside the restaurant; pointed a gun at the employee; grabbed a bag from inside; and then fled with the bag, which contained cash from the day’s sales. The apparent motive for the robbery was because Mr. Mayer’s sister, Emily Mayer, was a disgruntled ex-employee.

Police stopped Mr. Mayer’s vehicle, detained Mayer and the vehicle’s other occupants, and transported them to the police station for questioning regarding the robbery. Deputy Tom Dennison of the Clark County Sheriff’s Office questioned Mayer in an interview room at the police station. Dennison began by reading Mayer his Miranda rights and asking if he could record the interview. Mayer initially waived his Miranda rights and agreed to the recording.Once recording began, Dennison again advised Mayer of his Miranda rights:

“You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right at this time to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before questioning if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.”

This time, however, Mayer asked Dennison to clarify how he could obtain appointed counsel:

DEPUTY DENNISON: “Do you understand each of these rights as I’ve explained them to you?”

MR. MAYER: Yes. Um, If I wanted an attorney and I can’t afford one, what — what would — ?

DEPUTY DENNISON: If you wanted an attorney– you know, if you were charged with a crime and arrested, if you wanted an attorney and couldn’t afford one, the Court would be willing to appoint you one. Do you want me to go over that with you again?

MR. MAYER: Yeah, but how would that work? Will you be– how it– how I–

DEPUTY DENNISON: You’re not under arrest at this point, right?

MR. MAYER: Oh, okay. Okay.

DEPUTY DENNISON: So, if you were, then you would be taken to jail and then you’d go before a judge and then he would ask you whatever at that point, if you were being charged, you would afforded an attorney if you couldn’t hi — you know, if you weren’t able to afford one.

MR. MAYER: All right. I understand.

DEPUTY DENNISON: Understand?

MR. MAYER: Yeah.

DEPUTY DENNISON: Okay. So you do understand your rights?

MR. MAYER: Yes.

After this exchange, Mayer waived his Miranda rights, agreed to speak with Dennison regarding the robbery, and made incriminating statements. Mayer admitted, among other things, that on the day of the robbery he met with his sister Emily, who drove the getaway car, and John Taylor, the other robber; they drove to the teriyaki restaurant; Mayer entered the restaurant with Taylor; Taylor was armed with a handgun, and Mayer had a knife; Mayer told the employees “give me the money”; Taylor grabbed the deposit bag containing money; Mayer ran from the restaurant with Taylor; they were picked up by Emily; and Mayer split the proceeds of the robbery with Taylor.

Based on the confession, Mayer was arrested and charged with 11 criminal counts (later reduced to 10 counts), including Robbery in the First Degree. Mayer moved to suppress the incriminating statements he made during his interview with Officer Dennison, but the superior court denied the motion after a CrR 3.5 hearing.

The jury ultimately convicted Mayer on all 10 pending counts. The trial court sentenced Mayer to 306 months of imprisonment. The Court of Appeals unanimously affirmed the conviction and sentence in an unpublished opinion. The WA Supreme Court granted review on his Miranda challenge.

For those who don’t know, the explanation of Miranda rights must be given before any custodial interrogation, stemming largely from the Fifth Amendment privilege against self-incrimination.  The person detained and interrogated must be made aware of the right to remain silent, the right to consult with an attorney and have the attorney present during questioning, and the right to have an attorney appointed if indigent. Without a Miranda warning or a valid waiver, statements might be inadmissible at trial under the exclusionary rule (e.g., they cannot be used as substantive evidence of guilt in criminal proceedings). See Miranda v. Arizona, 384 US 436 (1966).

Here, the WA Supreme Court ruled that Mayer’s confession should have been suppressed. They reasoned that Officer Dennison’s linkage of Mayer’s right to appointed counsel to conditional future events (arrest, jail, charge, and arraignment) contradicted his earlier statements that Mayer could have access to appointed counsel “before questioning” and that he could exercise his rights “at any time.” Critically, Officer Dennison did not tell Mayer that despite the fact that no appointed attorney was immediately available, Mayer’s other Miranda rights remained in full effect and he could protect his right to the presence of counsel by remaining silent until he could speak to an attorney.

Under these circumstances, ruled the court, Officer Dennison’s explanation of Mayer’s rights was deficient, and the State has failed to meet its burden of establishing that Mayer knowingly and intelligently waived his rights. Mayer’s subsequent confession therefore should have been suppressed. However, the Court further reasoned that because any error in admitting the confession was harmless, the court affirmed Mayer’s conviction.

My opinion? Good decision. This Miranda advisement from the police officer was contradictory and confusing. The deputy should have clarified that the defendant was not obligated to respond to questions until he had the opportunity to confer with a lawyer. Again, good decision. Unfortunately for the Defendant, however, the WA Supreme Court also decided the error was harmless. In other words, he was still convicted of the charges and must serve his sentence.

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

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

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

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

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

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

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

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

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

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

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

Good opinion!

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

State v. Espey: Prosecutor’s Improper Comments During Trial Reverses Defendant’s Convictions

Assault, Burglary, Constitutional Rights, Drug Offenses, Due Process, felony, Firearm, Jury Trial, Privacy, Prosecutorial Misconduct, Robbery, Violent Crime, Washington Court of Appeals, , ,

New trial ordered for murder suspect; Fifth District says Baricevic allowed improper testimony | Madison - St. Clair Record

Good opinion. In State v. Espey, The Court of Appeals ruled that a Prosecutor’s improper comments during a jury trial required reversal of the defendant’s convictions.

Mr. Espey was charged with Robbery First Degree, Burglary First Degree, Unlawful Possession of a Firearm First Degree, Possession of a Stolen Firearm and Unlawful Possession of a Controlled Substance. He had three separate jury trials. During closing argument at the second trial, the prosecutor argued the jury should consider Espey’s statement to police in light of the time he had spent consulting with attorneys prior to making the statement. The prosecutor said the following:

“Where I suggest you start is, start with his own recorded statement that he gave to the police. Keep in mind that he had been on the run for approximately six weeks. Keep in mind that he had already consulted with two attorneys, Chip Mosley and Gary Clower. He had lots of time to figure out what story he was going to tell the police.

If you have ever dealt with somebody who is a good liar, they have a pattern. What they do is this: admit everything you can’t admit without getting into trouble and only deny the stuff that you have to . . . You heard Tom Espey’s story in there. ‘I’m not guilty of robbery because i personally didn’t take anything. I’m free. Okay, I did everything else, but guess what? You can’t touch me.’ And he is wrong. He is wrong because he doesn’t understand what it means to be an accomplice. He doesn’t understand what accomplice liability means.”

Defense counsel did not object to these highly inflammatory and prejudicial statements. The jury convicted Espey of 3 of the 5 felonies.

In overturning the convictions, the Court of Appeals reasoned that the Prosecutor’s comments were so flagrant and ill-intentioned that no curative instruction could have stopped their prejudicial effect from swaying the jury. Therefore, defense counsel’s failure to object at trial did not waive the issue.

The court further reasoned that a defendant has a right to counsel under the state and federal constitutions under the 6th Amendment of the U.S. Constitution and article 1, subsection 22 of the Washington Constitution. Under these laws, several courts have held that a prosecutor violates these rights by using “an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment,” to imply guilt or suggest that the defendant hired an attorney to concoct an alibi. No prosecutor may employ language which denigrates the right of a criminal defendant to retain counsel of his choice, or otherwise limits the fundamental due process right of an accused to present a vigorous defense.

Finally, the court reasoned that the Prosecutor strikes at the core of the 6th Amendment right to counsel when it seeks to create an inference of guilt out of a defendant’s decision to meet with defense counsel. “That is precisely what the state did here and reversal is required as a result. The State thereby improperly commented on and penalized Espey’ s exercise of the right to counsel, a right guaranteed by the state and federal constitutions.”

The Court of Appeals reversed the convictions.

My opinion? Great decision.

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

State v. Lindsay: When Attorneys Act Unprofessionally

Assault, Burglary, Firearm, Kidnapping, Prosecutorial Misconduct, Robbery, Rules of Professional Conduct, Theft, Washington Supreme Court, , ,

I'll Have Your Rear End Sanctioned': Insurance Defense Lawyer Spars With Plaintiff, Opposing Counsel | Daily Business Review

In State v. Lindsay, the WA Supreme Court reversed a defendant’s conviction because the lawyers engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout the proceedings in this case.

The defendants were charged with Robbery, Burglary, Kidnapping, Assault and Theft of a Firearm. The jury convicted them of some, but not all counts. The WA Supreme Court reasoned that although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. In short, a prosecutorial misconduct involves a two-part inquiry: (1) whether the prosecutor’s comments were improper, and (2) whether tjhe improper comments caused prejudice.

The court noted that although the conflict from both the Prosecutor and Defense Counsel seemed mutual and both attorneys were at fault, Prosecutors are held to a higher standard of conduct. Additionally, some of the Prosecutor’s hijinks at Closing Argument required reversal of the conviction. For example, the Court noted that Prosecutors may not refer to defense counsel’s closing argument as a “crock.” These comments impugn Defense Counsel, and imply deception and dishonesty. The Prosecutor also said that the defendant Holmes’s testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard.”

Additionally, the Prosecutor’s attempts at coupling the jigsaw puzzle analogy with a percentage of missing pieces in the defense attorney’s case was also reversible error. Moreover, comparing the reasonable doubt standard to the decision made at a cross-walk is error. In addition, telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is also improper.

A prosecutor’s stating that a witnesses’ testimony is “the most ridiculous thing I’ve ever heard” is an improper expression of personal opinion as to credibility. Finally, a prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings.

My opinion? The WA Supremes made a good decision. Practicing law is hard. Conducting jury trials is very hard. Now imagine dealing with another attorney’s unprofessional conduct during trial. Unbelievable! Yes, these instances of misconduct happen. I speak from experience when I say it’s easy to get sucked into malicious and negative behavior, especially when attorney’s advocate in the heat of battle.

Nevertheless, Section 3.4 of Washington’s Rules of Professional Conduct require that attorneys be civil toward one another and the tribunal. It’s incredibly difficult for judges to analyze the legal issues over the furor of shouting attorneys. And it hurts the credibility of the entire legal institution when our citizens see us behaving badly. My heart goes out to the lawyers involved in the case. Hopefully, they worked out their differences.

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.

New Study Shows Immigration Reduces Violent Crime

Immigration, Robbery, Studies, , ,

What We Know (and Don't Know) About Immigrants and Violent Crime

A new study says that cities that experienced higher influxes of foreign-born and new immigrant populations also experienced lower rates of homicides and robberies. Using data from the FBI’s Uniform Crime Report and U.S. Census Bureau, Tim Wadsworth, an Assistant Professor of Sociology at the University of Colorado, found fascinating results.

Some background: during the 1990s immigration rates reached record levels.  Consequently, this led to speculation that increased immigration brought increased crime.

Not so, argues, Wadsworth.

Specifically, Wadsworth concludes that after considering other factors, growth among immigrants was responsible for roughly 9.3 percent of the decline of Homicides and 22.2 percent of the decrease in Robbery rates. He attributes this to what is referred to as the “healthy immigrant thesis,” which points to protective cultural and neighborhood factors often found in immigrant communities and families. Immigrants tend to be healthy, well-adjusted, motivated individuals and immigrant communities often buffer against the strains of poverty, assimilation and crime.

In addition, Wadsworth draws on social disorganization theory. From this view, to the extent that immigrant communities produce protective factors in ethnically diverse neighborhoods, the effects of their presence may spill over to the native population by enhancing overall stability.

My opinion?  This study is timely in light of Arizona’s recent anti-immigration legislation.  For those who can’t remember, this anti-immigrant legislation gives local police the authority to question individuals they suspect are in the country illegally.  In short, this research debunks evidence of a connection between immigration and crime.

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.

Amend Washington’s “Three Strikes” Law

ACLU, Drug Offenses, Legislation, Race & Law, Robbery, Sentencing, Three Strikes Law, , ,

California "Three Strikes" Law - Defined & Explained

Our criminal justice system is based on the concept that the punishment must fit the crime. Stated another way, the sentence imposed for a particular crime should be proportional to the circumstances of the crime.

The problem?  Under Washington’s “Three Strikes” law, which imposes a mandatory life sentence without parole on individuals convicted of any of almost two dozen felony offenses, the crime of Robbery in the Second Degree is one of the listed crimes.  An individual can be charged with second-degree robbery even if no weapon is used or no one is injured!

A solution?  The ACLU supports the removal of Robbery Second Degree from the list of strike offenses.  The bottom line is this: while serious in and of itself, Robbery Second Degree does not rise to the level of being Strike-worthy. When dealing with a potential life sentence, it is simply unjust to include a crime that sweeps so broadly.

Additionally, the “Three Strikes” law does not deter crime, and it disproportionately affects minority offenders. It takes sentencing discretion away from judges, who should be able to consider individual circumstances when imposing sentences. It adds costs to already tight government budgets by incarcerating elderly persons who are not a threat to public safety. Passing the legislation will reduce the number of people who are imprisoned for life out of all proportion to their offenses.

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.