In State v. Hall, the WA Supreme Court decided that an incarcerated defendant’s numerous phone calls to a witness constituted only one charge of Witness Tampering.
Defendant Mr. Hall threatened his girlfriend and her lover with a gun after finding them together in her apartment. He flees the scene and drives away in a car owned by his friend, Desirae Aquiningoc. Police later confront Aquiningoc about lending her car to Hall. She said that Hall was her boyfriend, that he lived with her, that he had borrowed her car on that January 14 to visit his mother. Later, police find Hall at his home and arrest him.
Based on what happened at Salazar’s apartment, Hall was charged with Burglary First Degree Burglary and Assault Second Degree and held in jail pending trial. While in jail, Hall attempted to call Aquiningoc over 1,200 times. During those phone calls, some of which were played for the jury, Hall attempted to persuade Aquiningoc that his legal woes were her fault and that she had a moral obligation not to testify or to testify falsely.
The phone calls were recorded. The State charged Hall with four counts of Witness Tampering. Hall goes to trial. The trial judge treated each count of Witness Tampering as a separate unit of prosecution. Hall appeals. The case winds its way to the WA Supreme Court.
The legal issue was whether Witness Tampering is a continuing offense or whether it is committed anew with each single act of attempting to persuade a potential witness not to testify or to testify falsely.
The WA Supremes reasoned that a “unit of prosecution” can be either a single act or a course of conduct. Here, the plain language of the statute supports the conclusion that the unit of prosecution is the ongoing attempt to persuade a witness not to testify in a proceeding. They further reasoned that, in the alternative, each conversation is a separate crime and, in this case for example, could lead to as many as 1,200 separate crimes.
“Such an interpretation could lead to absurd results, which we are bound to avoid when we can do so without doing violence to the words of the statute,” said the Court. “It seems unlikely the legislature intended that a person could be prosecuted for over a thousand crimes under the circumstances presented here.” Consequently, the Court held, under the facts of this case, Hall committed one crime of Witness Tampering, not three.
My opinion? Makes sense. It DOES seem absurd to stack multiple charges in this case. After all, a unit of prosecution can either be a single act or a course of conduct. It seems more realistic to view Halls many calls as a continuing course of conduct. You can’t label the calls as single acts because he didn’t change his plans, motive, or modus operandi.
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.
In the wake of the Lakewood police officer shooting tragedy, Representative Mike Hope (R-Lake Stevens) is drafting legislation to prevent serial offenders like Maurice Clemmons from having an opportunity to harm others. Hope, a Seattle police officer who works patrol when not in session, said this was at the top of his legislative agenda.
The three-part legislation will include two proposed changes to the Washington State Constitution and a sentencing enhancement, proposals he says would have prevented the murders of four Lakewood police officers Nov. 29.
The first bill would remove bail opportunities for dangerous individuals who have committed two felonies and are charged with a possible “third strike” felony offense. The second bill would prevent defendants from receiving bail if they commit another violent crime in Washington and are proven dangerous to the public. The third bill would require a sentencing enhancement against those who aid and abet criminals who are not bailable.
A change to the state constitution requires a two-thirds approval in both the House and the Senate and simple majority approval from voters.
My opinion? Like everyone, I’m deeply saddened with the deaths of the four Lakewood Officers. Their murders were completely meaningless and senseless. I’m also disturbed the defendant’s friends/relatives assisted him.
That said, I question whether altering the WA Constitution and chipping away at a defendant’s rights is the answer to preventing similar murders from happening in the future. I’m a staunch defender of constitutional rights. Indeed, if I were to wrap an American flag around myself and proclaim my patriotism out loud, then THAT is the platform I stand upon: vigilant, aggressive protection of individual rights against a tyrannical government.
The proposed legislation is strong medicine. Too strong. At worst, defendants can be held without bail. This is disturbing. Under court rules, judges may hold defendants without bail only if the charge they face is a capital charge; like murder. Additionally, judges must impose the least restrictive release alternatives to defendants.
Disallowing bail and indefinitely holding defendants in jail laughs in the face of “least restrictive alternative.” Finally, holding defendants without bail leads to “plea tenderization” by cutting defendants off from work and family. As a result, defendants may plead guilty not because they committed a crime; but simply to get out of jail and move on with their lives. That’s an utterly inhumane result if the defendant is innocent of the charges.
We’ll see what happens. The bill needs extremely strong support.
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.
Can’t agree with the Supremes on this one . . .
In State v. Iniguez, the WA Supreme Court decided a defendant’s speedy trial rights were not violated even though a defendant waited in jail 8 months and objected to all continuances.
Following his arrest on First Degree Robbery, Mr. Iniguez remained in custody pending a joint trial with his codefendant. An 8-month delay between arraignment and trial took place. During this time, the State moved for a total of four trial continuances, the last of which the State sought because it learned — belatedly — that a key witness was out of town. Iniguez objected to all continuances. The trial court denied his objections and pretrial motions. At trial, the jury found Iniguez guilty. He appealed.
The Court of Appeals reversed Iniguez’s conviction. The court held the eight-month delay between arrest and trial was prejudicial and violated Iniguez’s constitutional right to speedy trial.
However, the WA Supremes decided the delay did not violate the time-for-trial court rule, CrR 3.2, and did not violate the defendant’s Sixth Amendment or Const. art. I, § 22 constitutional right to a speedy trial.
The Court reasoned that Article I, Section 22 of the state constitution does not offer greater protections than the Sixth Amendment to the U.S. Constitution. Using the six-part Gunwall test, the Court determined there was no clear reason to find greater protections in the state constitution, so the two provisions should be applied similarly.
Also, under the four-factor Blakely analysis, the Court also reasoned that although the circumstances of the delay were substantial enough to presume harm to Iniguez, the level of violation of Iniguez’ speedy trial rights wasn’t enough to justify dismissing his case.
The Court ruled 5-4 against Iniguez, holding there was no constitutional violation of his right to a speedy trial.
My opinion? My thoughts are similar to dissenting Judge Sanders. I agree with the majority opinion that the length of delay in this case — coupled with the fact that Iniguez spent all of it in custody — gave rise to a presumption of prejudice. The defendant’s trial delay was nearly nine months. The delays arose because of the State’s need to interview witnesses, joinder with the co-defendant, scheduling conflicts, and the late discovery of the unavailability of a key witness one week prior to trial.
None of the delays were caused by Iniguez himself. Indeed, he objected to continuing his case at every opportunity! Finally, Iniguez was prejudiced because he was in jail during this entire process. This is very substantial. Incarceration carries detrimental effects: loss of job, disruption of family life, idleness, etc. Time spent in jail is simply dead time.
How were Iniguez’s Speedy Trial rights NOT violated?
Again, bad 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.
In State v. Stately, the WA Court of Appeals held that Vehicular Homicide By Disregard is NOT a Violent Offense and that some defendants are eligible for the First-Time Offender Waiver.
About a week before her 18th birthday, Ms. Stately drove a car while intoxicated. Unfortunately, she caused an accident that killed her best friend. Stately was charged — and later convicted — of Vehicular Homicide by Disregard under RCW 46.61.520(1)(c). At sentencing, the State recommended 17 months of incarceration. However, Stately argued she was entitled to a first-time offender waiver under former RCW 9.94A.650 because her crime was not defined as a violent offense.
The trial court agreed. Stately was sentenced under the first-time offender waiver to 30 days of incarceration, 12 months of community custody, and 4,000 hours of community restitution (community service).
For those who don’t know, a “first-time offender” is any person who has no prior felony convictions. At sentencing, the court may waive the imposition of a sentence within the standard sentencing range. The sentence imposed under the first-time offender provision is not an exceptional sentence but is, rather, a waiver of the standard sentence range.
On appeal, the Prosecution argued that Stately was not eligible for a first-time offender waiver because she committed a violent offense.
However, the Court of Appeals thought different. It reasoned that there are three types of vehicular homicide, all currently class A felonies. Subsection (xiv) lists the first two types, homicide by intoxication and recklessness, but does not include the third type, homicide by disregard. Former RCW 9.94A.030(50)(a)(xiv).
The court further reasoned, “If we read the statute to define Vehicular Homicide by Disregard as a violent offense simply because it is a class A felony, then subsection (xiv) would be superfluous. We presume, however, that the legislature does not include superfluous language and we interpret statutes to give meaning to each section.
Here, it is impossible to harmonize the statute’s terms in subsection (i) with its terms in subsection (xiv). The later subsection, relating specifically to vehicular homicide, is more specific than subsection (i), which relates generally to all class A felonies. Applying the specific-general doctrine, the specific terms of subsection (xiv) prevail and Stately’s Vehicular Homicide by Disregard conviction is not a violent offense” (emphasis supplied).
My opinion? Again, excellent decision. It’s pleasing when our legal system takes an academic approach to cases by methodically reviewing the WORDING and LEGISLATIVE INTENT of statutes. Fortunately, that’s exactly what happened here. The court avoided a huge miscarriage of justice by refusing to allow the general rule of “violent offense” swallow legislative exceptions to the rule.
Please contact my office if you, a friend or family member are charged with a crime. Hiring an effective and competent defense attorney is the first and best step toward justice.
In State v. Kyllo the WA Supreme Court held that the jury instruction misstated the law on Self-Defense. Moreover, the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured.
On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, Mr. Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense.
At trial, Defense counsel proposed a self-defense jury instruction that stated:
A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.
Kyllo was convicted on the charge of second degree assault. On appeal, he asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion.
The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured — “One is not required to believe he is about to be grievously harmed or killed.”
The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.
My opinion? Excellent decision. Reminds defense attorneys to stay cognizant of the jury instructions they provide. For those who don’t know, a jury instruction is an instruction given by the court to a jury at the conclusion of presentation of all evidence in a trial, and after the lawyer’s closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations. The attorneys prepare the instructions.
Here, the defense attorney gave the “Acting on Appearances” instruction. The instruction presents a good starting point for the circumstances surrounding this particular case (Convict A is mad-dogging Convict B, Convict B attacks Convict A first — and acting on Convict A’s appearances — because he believes Convict A will attack and get the advantage of surprise). Unfortunately, the instruction, by itself wasn’t enough.
As a matter of practice, I believe both a self defense instruction AND and “Acting on Appearances” instruction work best in combination with each other. Speaking from my own trial experience, everyone on the street embraces self defense. It allows us to fight back when we’re attacked. Simple.
However, the soft-spoken pacifists out there (who are INCREDIBLY hard to spot at jury selection) are downright offended by the “Acting on Appearances” instruction. Many juries simply cannot promote violence beyond the context of self defense. Yet even a pacifist will fight to save their own life.
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.
It appears the Department of Corrections (DOC) Secretary Eldon Vail says the DOC will stop supervising 9,000 people due to decreased state budgets. The group includes property, drug, and non violent offenders. The most violent offenders and high-level sex offenders, however, will not see a change in supervision or management. Additionally, inmate beds will be reduced. One DOC prison will also be closed.
Some worry that crime will increase.
My opinion? Again, the embattled economy has caught up with the criminal justice system. It’s interesting what happens when we’re forced to tighten our belts, both individually and collectively. On an individual level, we spend less on luxury items. We hope that our sacrifices are enough to pull us through hard times. If not, we consider more drastic measures, and perhaps (gasp) a total retooling of our spending habits.
Collectively, our weakened economy makes our lawmakers to realize that jailing low-level crimes is an expensive luxury. I’ve often blogged that incarceration is THE MOST EXPENSIVE solution to crime and punishment. We can’t afford to blindly warehouse people any more. It isn’t the answer.
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.
Attorney at Law
Criminal Defense Lawyer
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Bellingham, WA 98225
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Mount Vernon, WA 98273
Phone: (360) 746-2642
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