Category Archives: Skagit County Criminal Defense

Panhandling is Free Speech

ACLU, Bellingham Defense Attorney, Constitutional Rights, First Amendment, misdemeanor, Panhandling, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense

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 In  City of Lakewood v. Willis, the WA Supreme Court held that a Lakewood Municipal Ordinance that prohibited begging near highways and intersections of major highways violated the First Amendment.
Mr. Willis was standing near an exit ramp from I-5 in Lakewood and holding a sign saying he was disabled and needed help.  An officer cited Mr. Willis for “Aggressive Begging,” a crime under Lakewood Municipal Code (LMC) 9A.04.020A.
At trial, the jury found Mr. Willis guilty. The municipal court sentenced him to 90 days in jail and a fine of $1,000, with 90 days and $750 suspended. The court also assessed $125 in costs. Mr. Willis appealed, raising several constitutional challenges to the statute.
On appeal, the WA Supreme Court reasoned that although the government can impose certain restrictions on speech in a public forum, such as reasonable time, place, and manner restrictions; it cannot impose restrictions based on content. Consequently, Willis may challenge the ordinance as facially overbroad regardless of his conduct. “Because both provisions impose a content-based speech restriction in a substantial number of traditional public forums, Willis’ facial challenge succeeds. Thus, his conviction must be reversed.”
My opinion? This is a great decision, and should be helpful to defense attorneys in other municipalities with ordinances that limit and outlaw panhandling.  Sure, aggressive panhandling from the homeless is annoying. However, it should not be criminalized. It wastes taxpayer money to incarcerate the homeless on these charges. Next thing you know, the Girl Scouts of America will be jailed for selling cookies at your grocery store.
Big congratulations to attorney David Ionnotti, who represented Mr. Willis.  The ACLU and Washington Defender Association filed one amicus brief in the case, and the Seattle/King County Coalition on Homelessness filed another.

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.

Jails Aren’t Liable to Control Released Inmates.

Bellingham Defense Attorney, Department of Corrections, Duty to Control, Jail, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In Binschus v. Skagit County, the WA Supreme Court held a jail’s duty to supervise and control inmates during incarceration does not include a general duty to somehow prevent inmates from committing crimes after they are lawfully released from incarceration.

Isaac Zamora was incarcerated at Skagit County Jail for nonviolent crimes from April 4, 2008, until May 29, 2008, when he was transferred to Okanogan County Corrections Center. Zamora then served the rest of his sentence at Okanogan County Corrections Center and was released on August 2, 2008.

On September 2, 2008, Zamora had a psychotic episode and went on a shooting spree in Skagit County. He ultimately killed six people and injured several others.

Some of his victims and their families sued a number of parties, including Skagit County. The plaintiffs alleged that Skagit County failed to exercise ordinary and reasonable care while Zamora was incarcerated in Skagit County Jail several months prior to the shooting.

The trial judge granted summary judgment to Skagit County and ultimately dismissed the causes of action against the Skagit County jail. The Court of Appeals reversed. Ultimately, the case was appealed to the WA Supreme Court.

The Court reasoned that, as a general rule, people and institutions are not responsible for preventing a person from physically harming others. However, there is an exception when a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct.

Although the  “duty to control” relationship naturally extends between a jail and an inmate, the court clarified, when the relationship begins and when it ends:

“We did not previously, and do not today, expand it to a general duty to prevent a person from committing criminal acts in the future . . . The practical implications of imposing such a broad duty on jails are striking. By some estimates, the recidivism rate is well over 50 percent . . . Thus, one could argue that in almost any case, it is foreseeable that an inmate may commit another crime after release. Are jails civilly liable for those crimes if they failed to take adequate measures to prevent that foreseeable recidivism? Such an expansive interpretation is not supported . . .”

With that, the WA Supreme Court concluded that jails have a responsibility to control violent inmates while they are incarcerated, but they do not have a general duty to prevent such inmates from committing crimes after they are lawfully released from incarceration.

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.

Deadly Force Not Justified.

42 U.S.C. § 1983, 9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, Deadly Force, law enforcement, Police Misconduct, Qualified Immunity, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In A.K.H. v. City of Tustin, the Ninth Circuit Court of Appeals held the government could not justify a police officer’s use of deadly force during the officer’s attempted investigatory stop of Mr. Herrera.

FACTS & PROCEDURAL HISTORY.

Defendant Osvaldo Villarreal, a police officer in Tustin, California, fatally shot Benny Herrera during an attempted investigatory stop. Herrera was on foot. Officer Villarreal was in his patrol car and had just driven up beside Herrera. Herrera was in the middle of the roadway, moving in the direction of traffic. His left hand was free and visible; his right hand was in his sweatshirt pocket. Villarreal commanded Herrera to take his hand out of his pocket. Less than a second later, just as Herrera’s hand came out of his pocket, Villarreal shot him twice, killing him. Herrera was unarmed. Villarreal does not claim that he saw, or thought he saw, a weapon in Herrera’s hand.

Relatives of Herrera (“Plaintiffs”) filed suit under 42 U.S.C. § 1983 against Officer Villarreal and the City of Tustin alleging that Villarreal used excessive force against Herrera in violation of the Fourth Amendment. Villarreal moved for summary judgment based on qualified immunity, which would have effectively dismissed the lawsuit against him. However, the federal district court denied the Officer’s motion.

Officer Villarreal brought an interlocutory appeal to the Ninth Circuit Court of Appeals. He argued that, even viewing the evidence in the light most favorable to the plaintiffs, his actions did not violate the Fourth Amendment and that the district court therefore erred in denying him qualified immunity.

THE ISSUES.

The Ninth Circuit reasoned it must ask two questions to determine whether Officer Villarreal is entitled to summary judgment based on qualified immunity. First, viewing the facts in the light most favorable to the plaintiffs, did Villarreal use excessive force in violation of the Fourth Amendment? Second, if Villarreal used excessive force, did he violate a clearly established right?

THE COURT’S ANALYSIS.

Quoting Tennessee v. Garner, the Ninth Circuit reasoned that Deadly Force is permissible only if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm.

Here, the Ninth Circuit found Officer Herrera used excessive force in violation of Mr. Herrera’s Fourth Amendment rights. The Court reasoned that (1) the crime at issue was a domestic dispute that had ended before the police became involved; (2) the deceased did not pose an immediate threat to the safety of the officers or others, as the officer did not believe the deceased was armed and the officer did not see a weapon; (3) although the deceased did not comply with the officer’s commands to remove his hand from his sweatshirt pocket, he did not attempt to flee; and (4) the officer escalated to deadly force approximately 1 second after issuing the command to the deceased to remove his hand from his pocket. “Viewing the evidence in the light most favorable to the plaintiffs, we conclude that Villarreal violated clearly established Fourth Amendment law when he shot and killed Herrera.”

CONCLUSION.

In its conclusion, the Ninth Circuit said the following:

“It has long been clear that a police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. Viewing the evidence in the light most favorable to the plaintiffs, that is precisely what Officer Villarreal did here.”

My opinion? Great decision. Straightforward, direct, constitutionally sound and accurate. I’m happy the Ninth Circuit saw this case for what it was.

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.

“Stop & Frisk” of Friends

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, law enforcement, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

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In State v. Flores, the WA Supreme Court  decided that police officers may seize a defendant’s companions if officers can articulate a reason based specifically on safety concerns for the officers, the arrestee, his or her companions, or other citizens.
 On November 2, 2013, an anonymous source reported to the Moses Lake Police Department that Giovanni Powell pointed a gun at someone’s head. Officer Kyle McCain was first to arrive at the scene of the incident. Officer McCain was familiar with Powell, and was soon updated that Powell had an arrest warrant.
 Officer McCain arrived at the reported address. He observed Powell, whom he recognized, and another person (later identified as Flores) walking down the street together. McCain did not recognize Flores and did not have any reason to suspect Flores of criminal activity.
 McCain parked across the street from Powell and Flores, got out of his car, drew his side arm, held it pointed at the ground, and ordered Powell to stop. As this was occurring, other officers arrived. Mr. Flores told officer he possessed a firearm in his pants. It was removed and secured. The State charged Flores with Unlawful Possession of a Firearm in the First Degree.
 Flores brought a CrR 3.6 motion to suppress all evidence of the gun. The judge granted the motion, which ultimately resulted in dismissal of the charges. The State appealed, and Division Three of the Court of Appeals affirmed the dismissal. The State appealed again to the WA Supreme Court.
 The court addressed the issue of whether it violates article I, section 7 of the Washington State Constitution for an officer to seize the nonarrested companion of an arrestee to secure the scene of an arrest.
 The court reasoned that an individual is seized when, under the circumstances, an individual’s freedom of movement is restrained and the individual would not believe he is free to leave or decline a request due to an officer’s use of force or display of authority. State v. Rankin. This determination is made by objectively looking at the actions of the law enforcement officer.
 The court reasoned that an officer does not meet the standard required for a Terry stop in cases like this: “Terry must be met if the purpose of the officer’s interaction with the passenger is investigatory. For purposes of controlling the scene of the traffic stop and to preserve safety there, we apply the standard of an objective rationale.”
 Consequently, the Court gave factors from the WA Court of Appeals Div. III  decision State v. Mendes for determining what “an objective rationale” means when it comes to seizing a defendant’s companions. These Mendes factors include (but are not limited to) the arrest, the number of officers, the number of people present at the scene of the arrest, the time of day, the behavior of those present at the scene, the location of the arrest, the presence or suspected presence of a weapon, the officer’s knowledge of the arrestee or the companions and potentially affected citizens.
 “This is not an exhaustive list, and no one factor by itself justifies an officer’s seizure of non-arrested companions,” said the Court. “When determining whether there is an objective rationale, the court should look at all the circumstances present at the scene of the arrest.”
 Applying this “Objective Rationale Test,” the Court found that Officer McCain justifiably seized Mr. Flores to secure the scene of Powell ‘s arrest, and that the Officer’s actions were justified. The WA Supreme Court reversed the Court of Appeals, found the seizure was lawful and ruled the evidence of the gun should not have been suppressed.
 Justice McCloud dissented under arguments that officers must comply with Terry at the scene of an arrest, and that the new “Objective Rationale Test” adopted by the Court effectively circumvented time-tested case law:
“This holding creates a new exception to the Fourth Amendment’s warrant requirement, and we don’t have the power to create it–only the (United States) Supreme Court does. It’s also a new exception to our court’s consistent statements, for decades, that article I, section 7 provides more protection for individual privacy rights than the Fourth Amendment.”
 My opinion? The officers would have eventually found Mr. Flores’s firearm anyway if they followed protocol under a Terry stop. But they didn’t. Therefore, and similar to Justice McCloud, I’m concerned whether the “Objective Rationale Test” was wrongfully created to become another exception to the Fourth Amendment’s warrant requirement.

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.

“Voodoo Science” Debunked

9th Circuit Court of Appeals, Bellingham Defense Attorney, Constitutional Rights, DNA, Due Process, Evidence, Forensics, Homicide & Manslaughter, Prison, Prosecutorial Misconduct, Race & Law, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , ,

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Interesting article from the Wall Street Journal written Alex Kozinski , a judge on the Ninth Circuit Court of Appeals since 1985, discusses how the U.S. has relied on flawed forensic evidence techniques for decades, resulting in false convictions.

According to Judge Kozinski, the White House released a report that fundamentally changes the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

The study indicates that only the most basic form of DNA analysis is scientifically reliable. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms, says Judge Kozinski, “Bitemark analysis is about as reliable as astrology.” Yet many unfortunate defendants languish in prison based on bad science.

Even more disturbing, the article states that forensic scientists – who are often members of the prosecution team – sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury, says Judge Kozinski. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Apparently, problems with forensic evidence have plagued the criminal-justice system for years.

The PCAST report recommends developing standards for validating forensic methods, training forensic examiners and making forensic labs independent of police and prosecutors. “All should be swiftly implemented,” says Judge Kozinski, who adds that preventing the incarceration and execution of innocent persons is as good a use of tax dollars as any:

“Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.”

My opinion? Jurors rely HEAVILY on forensic evidence in their deliberations. And it makes sense: it’s a huge task to weigh evidence and sift through the rhetoric of arguments from the prosecution and defense. Cold, hard, quantifiable and scientific facts make it easy for jurors to render decisions.

Consequently, the information from this report is both good and bad news. It’s good because the truth about  “voodoo science” in the courtroom has finally surfaced to the mainstream. It’s bad because hundreds, if not thousands of innocent people are convicted of crimes and serve years in prison based on unreliable evidence for crimes they didn’t commit.

Fortunately, there’s hope. According to Judge Kozinski, the report “provides a road map for defense lawyers to challenge prosecution experts.” Excellent.

Competent attorneys should immediately gain an understanding of challenging prosecution experts who bring voodoo science in the courtroom. It’s the only way to shed light on this grim subject and bring justice to our courts.

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.

Trial Apparel

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Jury Trial, Methamphetamine, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Caver, the WA Court of Appeals Division I decided a defendant’s constitutional rights were not violated when the court refused to allow him to wear jail clothing at trial.  It does not prejudice a defendant to wear civilian clothes.

Defendant Terry Caver was arrested and charged for Possession of Methamphetamine. Caver remained in custody when his trial began two months after his arrest. At the start of trial, he asked the trial court for permission to wear his jail clothes in front of the jury. He explained that the clothes “represent that I’m in here, that I’m not on the street. It represents what’s really going on in my life. I don’t want these people thinking that I’m on the streets when I’m not on the streets.”

The trial court denied Caver’s request, stating that “it causes much mischief if the defendant is clothed in regular jail garb.” The court explained to Caver that wearing jail clothes would cause the jury to speculate about why he was in jail and whether he posed a danger to them. The jury found him guilty.

He appealed on numerous grounds to include arguments that the trial court violated his due process rights by not allowing him to wear jail clothes at trial.

The court reasoned that  although a defendant has the right not to appear in jail or prison clothing pursuant to Estelle v. Williams, these rights do not include a broad freedom for the defendant to express himself through his dress.

“Compelling Caver to wear civilian clothes did not erode the “physical indicia of his innocence,” as requiring him to wear jail clothes or shackles would. It did the opposite by making him appear as any member of the public. Similarly, civilian clothes did not single Caver out “as a particularly dangerous or guilty person.” And civilian clothes did not offend the dignity of the judicial process or restrict Caver’s ability to assist counsel and testify.”

Furthermore, although some Defendants sometimes choose to wear jail clothes as a trial tactic, it does not imply that defendants have a right to pursue this trial tactic. Consequently, the Court of Appeals concluded that the trial court’s decision was not inherently prejudicial and that the trial court did not abuse discretion.

My opinion? Jail clothes make people look guilty. Period. That said, most defendants want to wear civilian clothing at trial. Looking “normal” – or at least not incarcerated – tells the jury the defendant might not be guilty of the charges.

Here, Mr. Caver wanted to wear his jail clothes at trial. Interesting. Was this a trial tactic? Who knows. I cannot speculate anything beyond this plain fact because I am not Mr. Carver’s attorney. However, as the court noted, ” . . . although some Defendants sometimes choose to wear jail clothes as a trial tactic, it does not imply that defendants have a right to pursue this trial tactic.”

Interesting 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.

Assault is “Lesser Included” Charge for Indecent Liberties.

Assault, Bellingham Defense Attorney, felony, Jury Trial, Lesser Included Jury Instruction, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Bluford, the  WA Court of Appeals Div. I decided that Assault in the Fourth Degree satisfies the legal prong of the lesser included offense test for the crime of Indecent Liberties. Charles Bluford appealed his conviction for Indecent Liberties on arguments that the trial court failed to instruct the jury on the lesser charge of assault.

For those who don’t know, a “lesser-included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

Here, the Court reasoned that instructing juries on lesser included offenses “is crucial to the integrity of our criminal justice system,” and that  courts should therefore “err on the side of instructing juries on lesser included offenses.” Furthermore, the Court of Appeals reasoned that courts should instruct the jury about a lesser included offense if the jury could find that the defendant committed only the lesser included offense.

The Court analyzed whether a defendant is entitled to a lesser included offense instruction under the test announced in State v. Workman. Under this test, the defendant is entitled to a lesser included jury instruction when (1) each of the elements of the lesser offense is a necessary element of the charged offense and (2) the evidence in the case supports an inference that the lesser crime was committed.

The court applied the Workman test and decided Bluford should have been granted a lesser included instruction for assault fourth degree. Here, the State charged Bluford with one count of Indecent Liberties. This requires that a person “knowingly cause another person who is not his or her spouse to have sexual contact with him or her or another.. . by forcible compulsion.” Accordingly, this crime requires knowledge as the mental state. Therefore, Workman’s factual prong was satisfied.

The common-law definition of assault that applies is an “unlawful touching with criminal intent.” Thus, reasoned the court, fourth-degree assault requires intent as the mental state.  Indecent liberties also requires “sexual contact.” Thus, the State must prove that the defendant acted with a sexual purpose. Accordingly, fourth-degree assault does not require a higher mental state than indecent liberties. Therefore, reasoned the Court, the Workman test’s legal prong is met here, as well.

Consequently, Bluford was entitled to a lesser included offense instruction on fourth-degree assault.

The court reversed his conviction.

My opinion? Good decision. Sometimes, Prosecutors “overcharge” the seriousness of criminal acts. For example, some offenses charged as Assault in the Second Degree should really be charged as Assault in the Fourth Degree. Consequently, it’s imperative for competent defense attorneys to try convincing judges to give more options to juries than “guilty” or “innocent” on overcharged offenses.

That’s why the “lesser included instruction” tactic is a valuable trial tool to seek reductions, especially for sex offenses, which are some of the most damaging criminal charges one could possibly face. A sexual assault or sex crime carries serious penalties, including loss of freedom, sexual deviancy treatment, lengthy registration requirements and negative public stigma. Sexual assault convictions also limit future job opportunities and possibly prevent people from seeing their families. The effects are devastating.

For more information on sex offense defense, please read my practice area Sex Offenses. And 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.

“Joining” Multiple Offenses

Bellingham Defense Attorney, Due Process, felony, Joinder, Jury Trial, Prior Bad Acts, Prison, Rape, Robbery, Sentencing, Severance, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Bluford, the WA Court of Appeals Division I decided a trial court correctly joined a defendant’s multiple counts of robbery for one trial. The similarities between the crimes were adequate for the offenses to be cross admissible to establish a modus operandi.

The State charged Charles Bluford with nine felony counts. These included seven counts of Robbery in the First Degree plus a charge of Rape in the First Degree of one victim and Indecent Liberties of a separate victim.

The State initially charged Bluford under three different cause numbers, but moved to join all the counts for trial. Bluford moved to sever five of the counts from the others. The court considered these cross motions at the same hearing and joined all counts for trial.

The jury found Bluford guilty of eight counts and acquitted him of one count of Robbery. It sentenced him to life without the possibility of release. Bluford appeals.

The Court of Appeals began by discussing the statute and court rule regarding the “joinder” of criminal offenses. RCW 10.37.060 states the following:

When there are several charges against any person, or persons, for the same act or transaction, or for two or more acts or transactions connected together, or for two or more acts or transactions of the same class of crimes or offenses, which may be properly joined, instead of having several indictments or informations the whole may be joined in one indictment, or information, in separate counts; and, if two or more indictments are found, or two or more informations filed, in such cases, the court may order such indictments or informations to be consolidated.

Also, CrR 4.3 says the following:

Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both: (1) Are of the same or similar character, even if not part of a single scheme or plan; or (2) Are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.

The court reasoned that the joinder rule promotes the public policy goal of conserving judicial resources. Also, joinder is appropriate unless it is so “manifestly prejudicial” that it outweighs the need for judicial economy. In other words, courts may not join offenses if it would prejudice the defendant.

The court applied the four-factors guide from State v. Cotten to determine whether prejudice results from joinder:

(1) the strength of the State’s evidence on each of the counts; (2) the clarity of the defenses on each count; (3) the propriety of the trial court’s instruction to the jury regarding the consideration of evidence of each count separately; and (4) the admissibility of the evidence of the other crimes.

The Court applied the Cotten factors.

First, the Court of Appeals reasoned that the trial court correctly determined that the strength of the State’s evidence for each count was equivalently strong.

Second, Bluford asserted a general denial for each count. Therefore, he could not have been prejudiced by inconsistent defenses because his defenses were all the same.

Third, Bluford argues that the court’s instructions to the jury at the end of the case did not instruct the jury that it could not consider the evidence of other crimes as propensity evidence. However, Bluford failed to request such an instruction. And the trial court is not required to give such an instruction if the defendant fails to request one.

Fourth, the court determined that the evidence of each count would be cross admissible for the other counts for the purpose of showing modus operandi. It reasoned that although ER 404(b) prohibits introducing evidence of other bad acts as propensity evidence, such evidence is admissible for other purposes, such as proof of motive, plan, or identity. Under the modus operandi exception, evidence of other bad acts is admissible to show identity if the method employed in the commission of crimes is so unique that proof that an accused committed one of the crimes creates a high probability that he also committed the other crimes with which he is charged. The modus operandi must be so unusual and distinctive as to be like a signature.

In Bluford’s case, the trial court determined that the crimes were cross admissible for the following reasons:

Each incident occurred within an approximately two month period. Each incident occurred during hours of darkness. Each incident occurred in the Seattle metro area. Each incident occurred in a residential area. The defendant was a stranger to each victim. In each incident, the victims were alone when  . . . a male approached with a handgun and gave verbal demands to the victims. The descriptions of the handgun by the victims are similar. Four of the victims gave a description of the vehicle, which matches the vehicle the defendant was later found inside. Two of the three female victims were sexually assaulted during the course of the robberies. Although one of the female victims was not sexually assaulted during the robbery, she ran away at the time of the robbery, thereby limiting the opportunity for the defendant to sexually assault her . . . Therefore, although none of the incidents are a carbon copy of the others, the incidents are strikingly similar. Additionally, in each case the perpetrator approached the victim as he or she exited a car. And when the victim did not cooperate, the perpetrator forcefully took his or her property or assaulted the victim.

Consequently, modus operandi was proven. Finally, because Bryant failed to renew his motion to sever during trial, he technically failed to preserve for review the issue of severance.

Bluford’s convictions were upheld. However, the Court of Appeals vacated his sentence of life without the possibility of release and remanded for resentencing.

My opinion?

At trial, Prosecutors commonly try joining a defendant’s multiple offenses. As stated above, doing so creates judicial efficiency and shows propensity evidence under ER 404(b). Still, competent defense attorneys should try to sever multiple counts anyway; and most important RENEW THE MOTION DURING TRIAL. Failing to do so effectively waives the issue to be preserved for appeal.

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.

Kansas Cops Can’t Stop Colorado Drivers Just Because they Suspect Marijuana Possession.

42 U.S.C. § 1983, Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, law enforcement, Legislation, marijuana, Police Misconduct, Qualified Immunity, Race & Law, Search and Seizure, Skagit County Criminal Defense, Whatcom County Criminal Defense, , ,

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In Vasquez v. Lewis & Jimerson, the 10th Circuit Court of Appeals reinstated a lawsuit filed by a Colorado motorist against two Kansas Highway Patrol officers who pulled him over and searched his vehicle for marijuana as he was driving alone at night through Kansas on his way to Maryland.

The KHP officers, Richard Jimerson and Dax Lewis, stopped Vasquez when they could not read the temporary tag taped to the inside of the car’s tinted rear window. The officers believed they were justified in searching the vehicle because Vasquez was a citizen of Colorado driving on I-70, a “known drug corridor,” in a recently purchased, older-model car. They said he also seemed nervous.

On February 28, 2012, Vasquez filed this lawsuit against the Officers under 42 U.S.C. § 1983 – which allows citizens to sue the government for violating Constitutional Rights – and argued that the officers violated his Fourth Amendment rights by detaining him and searching his car without reasonable suspicion. At first, his lawsuit was dismissed. He took his lawsuit up on appeal.

The 10th Circuit found the officers violated Vasquez’s Fourth Amendment rights in searching his car without his consent. Nothing illegal was found. He had nothing more than an out-of-state license plate from Colorado, a state that has legalized marijuana. The Court found the officers violated Vasquez’s rights in searching his car:

“Accordingly, it is time to abandon the pretense that state citizenship is a permissible basis upon which to justify the detention and search of out-of-state motorists, and time to stop the practice of detention of motorists for nothing more than an out-of-state license plate,” the ruling states.”

My opinion? Good decision. And it makes sense.  Twenty-five states permit marijuana use for medicinal purposes, with Colorado, Alaska, Oregon, Washington, and Washington, D.C. permitting some recreational use under state law.  Our federal circuit courts are simply reading the writing on the wall.

Indeed, it even appears our federal courts are actually leading the charge toward the national legalization of marijuana. In my blog post titled, 9th Circuit Court of Appeals Bans Pot Prosecutions, I discuss recent news that the 9th Circuit prevented the U.S. Department of Justice from prosecuting pot charges if State laws allow for its legal possession.

Times are changing . . .

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.