Category Archives: Sex Crimes

Misconduct at Closing

Bellingham Defense Attorney, Constitutional Rights, Evidence, Expert Testimony, felony, Jury Trial, Juvenile, Prosecutorial Misconduct, Rape, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In In re Personal Restraint of Phelps, the WA Court of Appeals Div. II held (1) expert testimony is required if the State intends to rely on the grooming process to prove and argue  its case, (2) the Prosecutor improperly argued facts not in evidence about sexual grooming, and (3) this error resulted in prejudice to the defendant that requires a reversal of his convictions.

BACKGROUND

On June 8, 2012, Defendant Todd Phelps went to  trial on his charges of third degree rape and second degree sexual misconduct with a minor. In February 2011, the victim AA was a minor who began playing softball on her high school team. Mr. Phelps was one of her coaches. Apparently, Mr. Phelps groomed AA into having sexual relations with him.

At trial, the State did not present any expert or lay testimony about the grooming process.

In closing argument, however, the prosecutor discussed some of the topics that he questioned the jurors about during jury selection, including the grooming process:

“Then we talked about grooming. We talked about the process of grooming. And some people came up with examples of how someone who is grooming is going to be nice. They are going to try to get the trust of someone. They are going to try and isolate that person so that they can do an act against this person who is being groomed. And it’s not just the person who is being groomed, but it’s other people that are around as well that are being groomed.”

The prosecutor referred to the concept of grooming throughout his argument. For example, after talking about the alleged physical contact that occurred before the rape, the prosecutor argued,

“What is all this stuff that’s going on? What is all this physical contact between a coach and a student athlete? It’s grooming; it’s okay, every time I touch you, it’s okay, it’s okay. Eventually, it becomes the norm. The grooming isn’t in the open, folks. When people groom, they don’t do it so everybody can see. That’s not the way it works. It wouldn’t be called grooming. It would be called a crime because he’d be caught all the time.”

The prosecutor further discussed how the grooming process took place over time and that, as part of it, Phelps told AA stories about how his wife refused to sleep in the same bed with him, how his wife had made out with another man, and other statements about his wife that were attempts to make AA sympathetic to him. The prosecutor then commented about Phelps’s sexual comments to AA and his physical contact with her, stating that “these are the things that are going on that she’s being told and groomed with throughout their contacts.” After discussing MM’s father’s testimony about Phelps bragging about his ability to control AA’s emotions, the prosecutor argued,

“So let me talk about grooming again. At this point, point of the rape, [AA] is pretty much isolated from her entire family until she eventually is allowed to move with her aunt. Remember the stories about her family, her grandma, her cousin, her aunt. She’s told these sex stories by the defendant. She’s told to break up with her boyfriend, don’t talk to your counselor. The defendant is meeting with her in private with other students, but no adults around. He has made her feel important throughout this entire incident. She felt he was the only one she could talk to.”

These types of comments from the Prosecutor – and many others about grooming – were repeated and emphasized throughout closing argument.

The jury found Phelps guilty of second degree sexual misconduct with a minor and third degree rape. Phelps appealed on the issue of whether the prosecutor committed misconduct by introducing the concept of grooming in closing argument without any evidentiary support or foundation; i.e., arguing that the prosecutor argued facts outside the record.

THE COURT’S ANALYSIS

The court reasoned that the 6th Amendment to the United States Constitution guarantees a defendant a fair, but not an error-free, trial. The burden to establish prosecutorial misconduct is on the defendant, who must show that the prosecuting attorney’s conduct was both improper and prejudicial. Prosecutorial misconduct is grounds for reversal only when there is a substantial likelihood that the improper conduct affected the jury.

Expert Testimony of Grooming.

The Court said expert testimony is required if the State intends to rely on the grooming process to prove and argue its case. Although the discussion of grooming in jury selection demonstrates that some of the jurors in this case had some general knowledge of grooming, this does not demonstrate that the jurors had the nuanced understanding of the grooming process that would enable them to understand its effect on things such as AA’s failure to report and how the grooming process may be used to influence others in order to increase the defendant’s credibility or undermine the victim’s credibility. Furthermore, the Court reasoned that the psychological complexities in understanding and evaluating the grooming process demand expert testimony to aid the jury.

Ultimately, the Court reasoned that because the prosecutor’s grooming argument encompassed issues that are beyond the jury’s common understanding, Phelps is correct that the prosecutor should have presented expert testimony on this matter if the State wished to rely on these concepts in closing argument.

Arguing Facts Not in Evidence.

The Court held that the Prosecutor’s use of the grooming concept in closing argument without first presenting testimony about the grooming process was misconduct.  There was no evidence of any kind before the jury explaining the grooming process, the potential purposes of grooming beyond achieving a sexual relationship with AA, or the effects of grooming on those around AA. Consequently, the State was required to present expert testimony on this aspect of the grooming process because these concepts were not within the common understanding of the jury. For that reason, the prosecutor was arguing facts that were not in evidence.

Flagrant, Ill-Intentioned & Incurable Prejudice.

The Court reasoned that the Prosecutor’s argument, without any evidentiary support, was also clearly prejudicial because it touched on credibility determinations that were key to this case given the circumstantial nature of the case and the lack of direct evidence of the criminal acts. The prosecutor’s argument focused on how Phelps’s grooming behaviors affected AA’s behavior and how those around AA perceived AA. It also was intended to rebut Phelps’s claims that his contact with AA was merely an innocent attempt to help a troubled young woman. Thus, this argument had a strong relationship to AA’s and Phelps’s credibility and potentially influenced the jury’s credibility determinations.

Finally, the Court reasoned that any resulting prejudice from the Prosecutor’s statements at closing argument could not have been cured by a jury instruction:

“We hold that Phelps has shown that the prejudice could not have been cured by an instruction. The repeated and pervasive use of the grooming concept makes it less likely that the jury followed this instruction, particularly when the grooming evidence was relevant to the core credibility issues in a case with no direct evidence of the actual crimes. Thus, Phelps has established prosecutorial misconduct.”

With that the Court reversed Phelps’ conviction.

My opinion? Good decision. As a practice, expert witnesses are required to testify about issues which are beyond the common understanding of jurors. The topic of grooming sexual assault victims certainly requires an expert. Period.

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.

 

Pre-Arrest Silence & Business Records Exceptions to Hearsay Rule

Bellingham Defense Attorney, Business Record, Constitutional Rights, Evidence, felony, Fifth Amendment, Hearsay, Jury Trial, Miranda, Pre-Arrest Silence, Search and Seizure, Self-Incrimination, Sex Crimes, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Magana, the WA Court of Appeals held (1) the Fifth Amendment is not an obstacle to the State’s introduction of a suspect’s pre-arrest silence as evidence of guilt, and (2) the State failed to lay a proper evidentiary foundation for the Lineup ID Report, however, the erroneous admission of the document was harmless error.

Sergio Magana Jr., an adult, met met fourteen-year-old Y.L. through Facebook. After exchanging text messages, Y.L. and Mr. Magana made plans to meet at Y.L.’s home. Mr. Magana wanted to be alone with Y.L. When the day they planned to meet arrived, Mr. Magana went inside Y.L.’s home and forcibly raped her. Not long after leaving, Mr. Magana texted and told Y.L. not to mention his name and to delete all of their text messages because her “age scared him.”
After approximately two weeks, Y.L. reported Mr. Magana’s conduct to the police. Y.L. identified Mr. Magana from a photo lineup and submitted her phone so text messages could be extracted. The police then began looking for Mr. Magana.
After about six weeks, Mr. Magana made contact with the police and spoke to a detective over the telephone. During the call, Mr. Magana arranged to meet with the police. However, he never showed up for his appointment. About a month later, Mr. Magana finally met with a police detective in person. He was advised of his Miranda rights and acknowledged that he had indeed met Y.L. over Facebook, but he denied having intercourse. Mr. Magana was charged with one count of third degree rape of a child. Following a mistrial and then a second trial, he was found guilty by a jury and sentenced by the trial court. Mr. Magana appealed.
1. PRE-ARREST SILENCE.
On appeal, Mr. Magana argued the jury should not have known about his failure to appear for his initial police interview. He claims this was an improper comment on his right to silence, in violation of the Fifth Amendment to the United States Constitution.
However, the Court of Appeals reasoned that the rule from the  United States Supreme Court’s Salinas v. Texas holds that the Fifth Amendment is not an obstacle to the State’s introduction of Mr. Magana’s pre-arrest silence as evidence of guilt. Furthermore, although Washington State’s Constitution typically provides more protections than the U.S. Constitution, “this is not an area where our state’s constitution affords greater protection than the federal constitution.”
Consequently, the Court of Appeals reasoned Mr. Magana was not under arrest or any sort of police custody. They said his scheduled police interview was voluntary, and to the extent Mr. Magana’s failure to appear for the interview was relevant, the State was entitled to present this evidence.
PHOTO LINEUP EVIDENCE.
Also on appeal, Mr. Magana argued the State’s photo lineup exhibit was hearsay and admitted into evidence without proper foundation. However, the State argued that the exhibit was a properly authenticated business record.
The Court reasoned that under RCW 5.45.020 and ER 803(6), a document may be admitted as a business record as long as a witness testifies to the document’s identity and mode of preparation, and explains that the document “was made in the regular course of business, at or near the time of the act, condition or event.”
Here, the exhibit at issue consisted of three pages. The first page is an array of six hand-numbered photos, one of which depicts Mr. Magana. The second page is entitled “Lineup ID Report,” which is a computer-generated report that documents biographical information, including dates of birth, for the six individuals depicted on the photo array. The third page is a copy of the written admonishment form Y.L. signed prior to reviewing the photo array.
However, The Court of Appeals reasoned that during the photo identification process, Y .L. failed to review the second page of the report. Also concerning was that at trial, no witness testimony was presented regarding the creation of the Lineup ID Report included on page two.
For these reasons, and because no foundation was laid for the Lineup ID Report, it was improperly admitted as a business record. Nevertheless, and given the entirety of the evidence, the erroneous inclusion of the Lineup ID Report was harmless error which did not impact the jury’s verdict. With that, the Court of Appeals affirmed Mr. Magana’s convictions, but remand to the trial court for resentencing.

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

A “Missing Witness” Argument Cuts Both Ways.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Jury Trial, Pretrial Investigations, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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Fair warning folks, this is a post only trial attorneys can appreciate . . .

In State v. Goss, the WA Supreme Court held a defendant was properly barred from arguing that the jury could draw a negative inference from the fact the State had not offered a recording of a detective’s interview with the defendant.

Mr. Goss was charged with Goss was initially charged with one count of Child Molestation Second Degree on accusations that he sexually assaulted his former fiance’s granddaughter. Later, a charge of Attempted Child Molestation Third Degree was added.

The police interviewed Mr. Goss when the accusations first arose. The interview was recorded at the police station, and lasted 50 minutes.

Before trial, Goss moved to redact portions of the recorded interview relating to (1) pornography Goss’s home computer and (2) prior allegations of child molestation made against him. The State indicated that it did not plan to play the recording in its case in chief. The trial judge reserved ruling until and unless the recording was offered. Neither side moved to admit the recording during trial.

At closing argument, Goss was barred from arguing that the State failed to produce the video.

Goss was found guilty of the charges. He appealed. Among other arguments, he said the Prosecutor’s failure to admit the interview at trial was analogous to a party not offering an available witness. This is also called the “Missing Witness Doctrine, which is well-described in State v. Blair. ” Under the “missing witness” or “empty chair” doctrine it is a well-established rule that where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, he fails to do so, the jury may draw an inference that it would be unfavorable to him.

However, the WA Supreme Court rejected these arguments. It pointed out that Goss himself moved to redact portions of the recorded interview relating to prior allegations of child molestation made against Goss by his daughter. The Court also reasoned The detective who questioned Goss on the tape testified at trial. Consequently, Goss could have cross-examined the Officer on the witness and possibly got the recorded interview admitted, redacted or otherwise.  Coincidentally, ruled the Court, “Nothing in this record suggests the State’s decision not to play the tape was nefarious. Goss has not shown the trial court abused its discretion because the tape was analogous to a missing witness. ”

My opinion? It’s difficult to say the WA Supremes decided this wrong. I’ve won jury trials where the Prosecution has pointed the finger at Defense for failing to produce “missing witnesses.” Usually, these attacks from the State are rejected by courts because the State – and not the defense – carries the burden of proof. Asking the defendant to come up with more witnesses is a sly (and unlawful) way of shifting the burden to the defense.

The “Missing Witness” doctrine is rather funny in that it points the finger right back at the attorney who claims the other side failed to produce the “magic witness.”

WPIC 5.20 discusses the limited use of the “Missing Witness” defense/offense tactic. Basically, if a person who could have been a witness at the trial is not called to testify, jurors may be able to infer that the person’s testimony would have been unfavorable to a party in the case. Jurors may draw this inference only if they find that:

(1) The witness is within the control of, or peculiarly available to, that party;

(2) The issue on which the person could have testified is an issue of fundamental importance, rather than one that is trivial or insignificant;
(3) As a matter of reasonable probability, it appears naturally in the interest of that party to call the person as a witness;
(4) There is no satisfactory explanation of why the party did not call the person as a witness; and
(5) The inference is reasonable in light of all the circumstances.

The tactic is to be used sparingly, and with good reason: it points the finger right back at the accusing party! Here, that’s exactly what the WA Supreme Court decided.

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.

Apology Letters & Free Speech

Assault, Bellingham Defense Attorney, Compelled Speech Doctrine, Constitutional Rights, Juvenile, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v . K.H.-H., the WA Supreme Court held that a defendant’s First Amendment free speech rights are not violated by a requirement that the offender write an apology letter to the victim of the crime.

K.H.-H., a 17-year-old male, was charged with assault with sexual motivation after he forced himself on C.R., a female acquaintance who attended the same high school. The juvenile court found K.H.-H. guilty. At the disposition hearing, the Prosecutor requested the court order K.H.-H. to write a letter of apology to the victim. Defense Counsel objected, insisting that K.H.-H. maintained the right to control his speech. The Court followed the Prosecutor’s recommendations and ordered K.H.-H. to write an apology letter. The court also imposed three months of community supervision.

K.H.-H appealed. Eventually, his case ended up in the WA Supreme Court.

In short, the Court upheld the sentencing requirement that K.H.-H write the apology letter.

First, the Court acknowledged that because a forced apology involves making an offender say something he does not wish to say, it implicates the compelled speech doctrine. The compelled speech doctrine generally dictates that the State cannot force individuals to deliver messages that they do not wish to make.

Nevertheless, the Court also stated that First Amendment rights are not absolute, particularly in the context of prison and probation, where constitutional rights are lessened or not applicable. “Similarly, criminal convictions result in loss or lessening of constitutional rights.”

The Court also reasoned that a victim has an interest in receiving a letter of apology. This not only aims to rehabilitate the juvenile offender but also acknowledges the victim’s interest in receiving the apology:

“A letter of apology demonstrates a recognition and acceptance of responsibility for harmful actions. Such a condition is reasonably necessary for K.H.-H. to recognize what he did was wrong and to acknowledge his behavior. Additionally, an apology letter recognizes the victim’s interest in receiving an apology from the perpetrator. An apology allows the victim to hear an acceptance of responsibility from the very person who inflicted the harm. This is particularly important where both the victim and perpetrator are juveniles, and demonstrates to both the significance of giving and receiving an apology for wrongful acts.

This further advances the rehabilitative goals of the statute. The outward manifestation of accepting and apologizing for the consequences of one’s actions is a rehabilitative step that attempts to improve K.H.-H.’s character and outlook. Such a condition is reasonably related to the purpose of K.H.-H. ‘s rehabilitation and the crime here. One must face the consequences of a conviction, which often include the loss or lessening of constitutional rights.”

Justice McCloud dissented. Among other things, his dissent says the following:

“Compelling a false apology for a crime the defendant denies committing is far from the least restrictive means of achieving rehabilitation. In fact, it is probably the most ineffective way to achieve that result.”

An interesting case, no doubt.

My opinion?

I strive for reductions and dismissals in all of my cases. Sometimes that means taking accountability for what happened. Consequently, that also means apologizing. An apology letter to the judge is a great place to start. They are a great way to demonstrate responsibility and remorse for your actions. While an apology letter to the judge/magistrate is often an excellent way to show your remorse after you have committed an offence, it’s success will largely depend on how serious the crime was. Among other things, judges consider your likelihood at re-offending.

A sincere apology letter may show you have learnt your lesson and may go some way to proving this. Writing a letter to the victim can be one way of repairing the harm caused. Remember, judges have a fair amount of discretion when sentencing. They can consider the fact that you have taken responsibility for your actions as well as paid for any loss or damage caused. Finally, many victims will be happy to receive a sign of your recognition of the harm that you have caused them, especially if your crime wasn’t intentional or didn’t cause a great deal of harm.

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.

When Sexting Becomes Criminal

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In State v. E.G., the WA Court of Appeals Division III held that a juvenile’s texting a picture of his erect penis to an adult female is punishable as a violation of Dealing in Depictions of a Minor Engaged in Sexually Explicit Activity in the Second Degree under RCW 9.68A.050(2)(a).

Defendant E.G. was 17-year-old juvenile with Asperger syndrome. He began sending harassing phone calls to T.R., a former employee of E.G.’s mother. T.R. at the time was a 22-year-old mother of an infant daughter. E.G. found T.R.’s telephone number by checking his mother’s business records. Beginning in mid-2012, a male using a restricted phone number would call T.R. at night and make sexual sounds or ask sexual questions. On the afternoon of June 2, 2013, T.R. received two text messages: one with a picture of an erect penis, and the other with explicit language.

T.R. reported the phone calls and text messages to the police, who tracked the telephone to E.G., then age 17. He was questioned by the police and told them that it was his penis in the photograph.Shortly before his 18th birthday, E.G. was charged in the juvenile division of the Spokane County Superior Court with one count of second degree dealing in depictions and one count of making harassing telephone calls.

Unfortunately, E.G. had prior criminal behavior of a similar nature. At the time of his arrest, E.G. was currently serving a Special Sex Offender Dispositional Alternative (SSODA) as the result of an earlier juvenile adjudication for communicating with a minor for immoral purposes.

The defense moved to dismiss the charges under the argument that the statute could not be applied to a minor who was also the “victim” of the offense. The trial court denied the motion, concluded E.G. had committed the offense and required E.G. to register as a sex offender.

E.G. timely appealed. The Court of Appeals accepted an amicus brief jointly filed by the American Civil Liberties Union of Washington and the Juvenile Law Center. The only issue on appeal was whether the dealing in depictions statute properly could be applied to E.G.’s conduct.

Ultimately, the Court of Appeals upheld the juvenile court’s findings of guilt.

First, the Court of Appeals reasoned that E.G.’s conduct was not protected by the First Amendment because minors have no superior right to distribute sexually explicit materials involving minors than adults do.

Second, the Court rejected arguments that the criminal statute was vague because it does not provide notice that sending self-produced images of one’s own genitalia to others is included within the scope of the statute. The Court reasoned that while the statute’s reach may be broad, it is not vague.

Third, the Court rejected arguments that it was absurd for E.G. to be both victim and perpetrator. The Court’s response was perfunctory and direct:

“We disagree. First, nothing in the statute requires proof of any specific “victim” status as an element of the offense. Rather, child pornography per se victimizes children, which is the reason the legislature is seeking to eradicate it, whether or not the child willingly takes part. The legislature can rationally decide that it needs to protect children from themselves by eliminating all child pornography, including self-produced images that were not created for commercial reasons.”

Finally, the Court of Appeals rejected arguments that E.G.’s actions were an innocent sharing of sexual images between teenagers: “It appears, instead, to be the latest step in a campaign of anonymous harassment of T.R. for reasons best known to E.G., but even if it was an effort to entice or impress her, this was not an innocent activity.” With that, the Court of Appeals affirm the juvenile court’s adjudication and disposition of this case.

My opinion?

I understand it was a terrifying experience for the victim to undergo this terrible experience. Nevertheless, its difficult to justify where, under these facts,  a 17-year-old juvenile with Asperger syndrome should be found guilty of a heinous Class A sex offense felony and register as a sex offender for a number of years.

Although there are many possible symptoms of Asperger’s syndrome, the main symptom is significant trouble with social situations. Other symptoms include the following:

  • Inability to pick up on social cues;
  • Lack of inborn social skills, such as being able to read others’ body language, start or maintain a conversation, and take turns talking;
  • Lack of empathy;
  • Inability to recognize subtle differences in speech tone, pitch, and accent that alter the meaning of others’ speech;

. . . and the list goes on.

Again, my condolences to the victim. Still, when Asperger’s syndrome is coupled with adolescence and immaturity, it’s difficult to imagine a juvenile defendant truly understanding the repercussions of his actions under these facts.

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. Budd: WA Supreme Court Acknowledges Unlawful Search of Home.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, felony, Knock & Talk, law enforcement, Search and Seizure, Sex Crimes, Technology, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Budd, the WA Supreme Court decided law enforcement officers must properly give Ferrier warnings before entering a residence.

Good decision. Last year, I discussed how the WA Court of Appeals decided this matter in my blog titled, State v. Budd: Ferrier Warnings Improperly Given. Fortunately, the WA Supreme Court upheld the Court of Appeals’ decision.

Police arrived at his door on a “cybertip” that Mr. Budd was talking to underage girls through online chatting and that he possessed child pornography on his computer. Officers arrived at Budd’s home and performed a “knock & talk“, however, they lacked probable cause for a search warrant.  Also,  the detectives did not properly discuss Ferrier warnings with Mr. Holmes before he allowed them entry. They seized his computer, found child porn and charged him with Possession of Depictions of Minors Engaged in Sexually Explicit Conduct under RCW 9.68A.070. He was convicted.

Some background on Ferrier warnings is necessary in order to understand this “search & seizure of a home” case. In State v. Ferrier, the WA Supreme Court held that, before entering a citizen’s home without a warrant, a law enforcement officer must (1) ask the citizen for consent, (2) inform the citizen that he can revoke consent at any time and (3) notify the citizen that he can limit the scope of the entry into the home. If an officer fails to provide these Ferrier rights/warnings, then any evidence obtained from the search is “fruits of the poisonous search” and can be suppressed.

On appeal, Budd argued that the trial court wrongfully denied his motion to suppress evidence because the Ferrier warnings given by police were insufficient. The Court of Appeals agreed with Mr. Budd and suppressed the evidence. In response, the State took the issue up on appeal to the WA Supreme Court. In this new opinion, however, the WA Supremes ultimately decided the Court of Appeals correctly ruled that Budd’s consent was invalid.

The WA Supreme Court reasoned that since Ferrier, the Court has consistently limited the Ferrier warnings to knock and talk procedures. “In this case, the officers conducted a knock and talk because they sought Budd’s consent to enter his home to search for and seize suspected contraband. Therefore, the officers were required to give Budd the Ferrier warnings before entering his home.”

Furthermore, the Court discussed the similarities between Mr. Budd’s case at hand and the defendant in Ferrier:

“Indeed, the officers’ conduct in this case paralleled the conduct of the officers in Ferrier. In both cases, the officers arrived without announcement, surprising the resident. In both cases, the resident was not given time to reflect on the officers’ presence before being asked to give his or her consent for the officers to enter the home and search for evidence of a crime. In both cases, the resident reacted to the knock and talk procedure as expected by being polite and cooperative, and allowing the officers inside the residence.”

Finally, the WA Supreme Court affirmed the trial court’s finding that the officers did not give Budd the Ferrier warnings before entering his home and hold that Budd’s consent was therefore involuntary. And with that ,the WA Supreme Court affirmed the Court of Appeals and dismissed the charges against Mr. Budd.

Again, good decision. Although Mr. Budd’s actions leading up to his charges were certainly concerning, the WA Supremes got it right in deciding that our individual rights trump unlawful government searches of our homes. I’m glad they didn’t decide differently and chip away at the Ferrier decision. In Ferrier, the WA Supreme Court specifically highlighted the fact that when confronted with a surprise show of government force and authority, most residents believe they have no choice but to consent to the search. This is absolutely true. The Ferrier court also noted that it was not surprised by an officer’s testimony that virtually everyone confronted by a knock and talk accedes to the request to permit a search of their home.

Please read my Search and Seizure Legal Guide and 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. Castillo-Lopez: Substituting Counsel & Continuances

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In State v. Castillo-Lopez, Division II of the WA Court of Appeals upheld that the trial court’s decision to deny a motion to continue a trial on five counts of Rape of a Child in the Second Degree to allow the defendant’s retained attorney to replace the defendant’s court appointed attorney.

Mr. Castillo-Lopez was charged with having sexual intercourse with his step-daughter “T.S.” on five separate occasions between January 2012 and February 2013. T.S. turned 12 years old in 2012.

The court set the case for trial on July 7, 2014.

On June 19, 2014, Castillo-Lopez argued motions for substitution of counsel and for a continuance of the trial date. Castillo-Lopez argued the case should be continued because his new attorney needed time to prepare and the parties were still awaiting DNA evidence. Although the trial court ruled it would grant the substitution, the court denied the continuance. The Court referenced  “a statute that says the court has to consider also the impact of this on the child . . . (RCW 10.46.085).

On July 3, a different judge presided over a trial confirmation hearing. And again, the trial court made it clear that it would allow the substitution, but would not grant the continuance.

The matter proceeded to trial. The jury found Castillo-Lopez guilty of five counts of rape of a child in the second degree. The trial court sentenced Castillo-Lopez to a minimum of 500 months’ confinement.

Castillo-Lopez appealed on the argument that the trial court denied him his counsel of choice and abused its discretion when it denied his motions to substitute counsel that were dependent upon the court granting his motions to continue the trial date.

The Court of Appeals, however, disagreed. It decided the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. In considering these types of motions, a trial court should consider all relevant information because “these situations are highly fact dependent and there are no mechanical tests that can be used.” State v. Hampton. Finally, it reasoned that  trial courts should consider all relevant information including the 11 factors described in the most recent version of LaFave’s Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

(5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial;

(11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Here, the trial court did not abuse its discretion because the denial of the continuance was based on tenable grounds. It considered relevant information and applied a number of the above-listed factors in making its decision. It also reasoned Castillo-Lopez never expressed dissatisfaction with his appointed counsel. Castillo-Lopez did not want a continuance. Again, the trial court made it clear it would grant the motion for substitution of counsel, but without a continuance.

Thus, the denial of the motion for a continuance on July 3, 2014 was not an abuse of discretion because there were no substantial or compelling reasons to continue the trial date and the benefit to Castillo-Lopez was outweighed by the detriment of a continuance on the child victim.

My opinion? The Court should have granted at least  one continuance. Although the crimes were heinous, that’s not the point. Under the 6th Amendment, all defendants deserve a fair trial and to be represented by counsel of their choosing. It takes a lot of time to prepare for jury trial in a multi-count sex case involving Class A felonies. At least one continuance is warranted.

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. Hampton: You Can’t Replace Your Attorney at 11th Hour.

Bellingham Defense Attorney, Constitutional Rights, felony, Jury Trial, Rape, Sex Crimes, Sixth Amendment, Speedy Trial & Continuances, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Things to Consider Before Firing Your Attorney

In State v. Hampton, the WA Supreme Court decided  It was not an abuse of discretion for a trial judge to deny a defendant’s request to delay trial to allow him to replace his public defender with a private attorney.

Mr. Hampton was charged with Rape in the Second Degree. On the eve of his trial, Hampton moved to replace his appointed counsel with a new private attorney on the condition that the trial be continued so his new counsel could prepare. The trial court denied the continuance, so Hampton proceeded with his previously appointed counsel. He was ultimately convicted of Rape in the Third Degree.

The Court of Appeals reversed his conviction, holding that the trial court’s decision violated Hampton’s constitutional right to his choice of counsel because it considered Hampton’s reasons for wanting a new attorney. The Court of Appeals relied on United States v. Gonzalez-Lopez, a United States Supreme Court opinion that held that when a defendant’s right to choice of counsel is erroneously denied, a defendant need not show prejudice in order to obtain relief.

Here, the WA Supreme Court overruled the WA Court of Appeals and upheld Mr. Hampton’s conviction. It reasoned that a trial court has wide latitude to grant or deny a motion to delay trial related to a defendant’s request to change counsel. In making such a decision, trial courts should consider the factual context for the motion, which can include among other factors-a defendant’s reasons for dissatisfaction with existing counsel.

In this case, reasoned the court, the trial court did not abuse its discretion when it denied Hampton’s request to delay trial to allow him to replace his counsel given that (1) he did not make his request until the day his trial was scheduled to start, (2) his trial had already been continued once, (3) the victim/witness opposed the continuance, and (4) he did not explain his dissatisfaction with appointed counsel.

The WA Supreme Court also stated that trial courts can consider all relevant information, including the 11 factors described in the most recent edition of the LaFave Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

( 5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial; and

( 11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Based on that, and under the circumstances, the WA Supreme Court concluded that the trial court in this case did not error by considering the defendant’s reasons for dissatisfaction with his appointed attorney in addition to the other circumstances, such as the lateness of the request, the previous continuance granted by the court, and the victim/witness’s opposition to further delay.

Consequently, the WA Supremes reversed the Court of Appeals and held that the trial court did not abuse its discretion when it considered – among other factors – the defendant’s reasons for his dissatisfaction with his appointed counsel.

My opinion? Trial judges are very, very suspicious and pessimistic when defendants try withdrawing/replacing their defense attorney at the 11th hour before trial. Judges know that Prosecutors work hard – and they do – to bring witnesses together and prepare for trial. Judges also know want to avoid any witness tampering and/or intimidation on the part of defendants who may have mistakenly believed they could strike a BBD (bigger, better deal) right before trial.

That line of thinking on the part of defendants is not always true, in fact, it’s rarely true. Believe me, once a competent Prosecutor prepares a trial, they’re rarely convinced of going anywhere but forward with their prosecution.

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. Thierry: Prosecutor’s Improper Closing Argument Reverses Conviction.

Bellingham Defense Attorney, felony, Jury Trial, Prosecutorial Misconduct, Sex Crimes, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Ethics class ordered for tired attorney who made improper closing argument | The Law for Lawyers Today

In State v. Thierry, the WA Court of Appeals Division II decided that a Prosecutor’s statements during the closing argument of a child sex abuse case was an improper appeal to passion and prejudice.

The State charged Alfred James Thierry Jr. with four counts of Rape of a Child First Degree and two counts of Child Molestation First Degree, based on conduct against his son, JT.

At trial, the Prosecutor’s closing argument discussed direct versus circumstantial evidence. This explanation included the following:

“None of you were present when these acts occurred. No one testified for you that they watched any of these acts happen. That would be direct evidence of the acts themselves, but that is not required and, if it were, the State could never prosecute any of these types of cases.”

She made a similar argument shortly thereafter, in a discussion of the sufficiency of the State’s evidence:

“Did Thierry rape and molest his son? Yes, he did. The evidence tells you that he did. What’s the evidence? JT is the evidence, and he is all that is required for you to find him guilty of these crimes. If the law required more, if the law required anything, something, anything beyond the testimony of a child, the child’s words, JT’s words, those instructions would tell you that, and there is no instruction that says you need something else. And, again, if that was required, the State could rarely, if ever, prosecute these types of crimes because people don’t rape children in front of other people and often because children wait to tell.”

She again returned to this argument near the end of her initial closing remarks, in discussing the burden of proof:

“Now I want to talk just briefly about the standard of beyond a reasonable doubt. You don’t need to know all of the pieces. You don’t need to have all of the information or have all of the answers. If that were necessary, first of all, the standard would be beyond all doubt possible, but if that were necessary, once again, the State would not be able to prosecute any of these crimes or really any crime, actually, because how can you all as jurors who are selected from the community know nothing about any of the people involved, and certainly yourselves were not present for any act or crime that was committed, how can you know with 100 percent certainty?”

The prosecutor continued in this vein during rebuttal, returning to her public policy theme:

Defense counsel wants you to basically disregard everything that JT has said between what he told Sayfullah, between what he told Ms. Arnold-Harms, between when he told his primary care provider Ms. Lin and what he told Amber Bradford. ‘Just disregard all of that because he’s a child, because he was 8 when he said these things and because he was 9 when he was on the stand. Nothing he said is credible so just disregard it all.’ If that argument has any merit, then the State may as well just give up prosecuting these cases, and the law might as well say that “The word of a child is not enough.”

At that point Thierry’s defense attorney objected that the prosecutor was “fueling the passion and prejudice of the jury.” The court overruled the objection and permitted the prosecutor to continue.

The jury returned guilty verdicts on all counts.

Thierry appealed that several of the remarks the Prosecutor made in closing argument merit reversal. He also argued that the cumulative effect of the improper statements denied him a fair trial.

Ultimately, the Court of Appeals agreed with Thierry and decided that the Prosecutor’s arguments were improper and that it had a substantial likelihood of affecting the verdict.

The court reasoned that as a general matter, to prevail on a prosecutorial misconduct claim a defendant must show that the prosecutor’s conduct was both improper and prejudicial in the context of the record and all of the circumstances of the trial. To establish prejudice sufficient to require reversal, a defendant who timely objected to the challenged conduct in the trial court must show a substantial likelihood that the misconduct affected the jury verdict.

The Court further reasoned that it’s improper for prosecutors to use arguments calculated to inflame the passions or prejudices of the jury.  Arguments that compel the jury to send a message to society about the general problem of child sexual abuse qualifies as such an improper emotional appeal.

Here, the Prosecutor’s statement that, “If Defense Counsel’s argument concerning JT’s credibility has any merit, . . . the State may as well just give up prosecuting child sex abuse cases, and the law might as well say that ‘the word of a child is not enough’” also qualified as an improper appeal to passion and prejudice.

The Court further reasoned that even if the Prosecutor’s argument was deemed purely a response to the defendant’s argument, Defense Counsel never suggested that the jury should not believe JT because of his age. Furthermore, nothing in Defense Counsel’s closing argument, therefore, warranted the prosecutor’s message that the State may as well give up prosecuting child sex abuse cases if JT were not believed and Thierry acquitted.

Finally, the court reasoned that the Prosecutor’s arguments had a substantial likelihood of affecting the verdict. The outcome of the case depended entirely on whether the jury chose to believe JT’s accusations or Thierry’s denial. Consequently, the Prosecutor’s remarks created a substantial risk that the jury decided to credit JT’s testimony for improper reasons. The prosecutor’s remarks exacerbated that risk by misrepresenting Defense Counsel’s argument so as to unfairly undermine Thierry’s defense.

The Court of Appeals reversed Thierry’s convictions and remanded the case for further proceedings.

My opinion? Good decision. Generally, it’s a professional courtesy to not object during opposing counsel’s closing arguments. It’s considered rude. Nevertheless, defense attorneys must object at all times when appropriate, even if doing so is frowned upon by judges and juries. Prosecutorial misconduct happens all of the time, and ESPECIALLY during closing arguments. Those statements, made again and again, definitely affected the outcome of the case. Again, good decision.

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

State v. Cayetano-James: Prohibiting Phone Call Testimony

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Jury Trial, Prosecutorial Misconduct, Sex Crimes, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Notaries Earn Extra Income Serving As A Remote Testimony Witness | NNA

In State v. Cayetano-James, the WA Court of Appeals Division I decided the trial court mistakenly denied the defendant’s motion to have a witness testify telephonically from Mexico.

The defendant was charged with Rape of a Child in the First Degree. While the case was pending, he filed a notice of the defense of alibi. The Prosecutor changed the trial dates and amended the charges. In response, Defense Counsel filed and argued a motion to dismiss under CR 8.3(b). Because of this, Defense Counsel argued a potential witness in Mexico will most likely need to be contacted to refute the amendment to the charges.

On March 27, 2013, the trial court heard a defense motion to permit the telephonic testimony of witness Ms. Camacho. Defense counsel argued that because of Camacho’s immigration status, the court should allow her to testify by telephone or, alternatively, order her telephonic deposition. Although Defense Counsel argued that Camacho’s testimony was material, the court denied the motion for telephonic testimony. The court also denied Defense Counsel’s motion for a continuance. Finally, at trial, the court excluded Camacho’s Skype testimony and phone call testimony of other witnesses. Not surprisingly, the jury returned a verdict of guilty.

On appeal, the WA Court of Appeals held the trial court abused its discretion by excluding the telephonic testimony of this defense witness.

First, the court reasoned that the Fifth Amendment to the United States Constitution and article I, section 3 of the Washington Constitution guarantee that “no person shall be deprived of life, liberty, or property, without due process of law.” This right to due process includes the right to be heard and to offer testimony. The accused’s right to due process is, in essence, the right to a fair opportunity to defend against the State’s accusations.

Second, said the court, the right to call witnesses in one’s own behalf has long been recognized as essential to due process. “Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.” Additionally, Washington courts have broad authority under ER 611 to control trial proceedings and also have discretion to permit telephonic testimony under CR 43(a)(1).

Finally, the trial court abused its discretion when it excluded “essential facts of high probative value whose exclusion effectively barred [the defendant] from presenting his defense” without a showing by the State that allowing Camacho to testify by telephone would disrupt the fairness of the fact-finding process. This deprived the Defendant’s witness of the opportunity to present testimony that would have been relevant, material and vital to the defense; and violated his constitutional right to present a complete defense.

The court reversed the conviction and remanded for a new trial.

My opinion? Good decision. Obstructing a defendant from presenting witnesses for their defense violates the 6th Amendment. Period.

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.