Category Archives: Washington Court of Appeals

Harming a Police Dog

Man Who Shot, Killed Ohio K-9 Officer Jethro Sentenced to 45 Years in Prison - ABC News

In State v. Moose, the WA Court of Appeals decided an interesting case involving a defendant maliciously harming a K-9 officer.

BACKGROUND FACTS

The Defendant Mr. Moose attempted to light a car on fire. In the process, he intentionally lit a police dog on fire while resisting arrest. The State filed four charges against him—attempted Arson in the Second Degree, Harming a Police Dog, Resisting Arrest, and attempted Malicious Mischief in the Third Degree. A jury convicted him of all charges. Mr. Moose appealed his conviction. He argued that the term “maliciously” under the Malicious Mischief statute does not include police dogs.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by framing Mr. Moose’s appellate arguments. In short, Moose argued that the State lacked evidence to convict him because the Malicious Mischief statute defines “maliciously” as “an evil intent, wish, or design to vex, annoy, or injure another person.”  Because Mr. Moose harmed a police dog, not “another person,” the State failed to prove he acted maliciously as required by statute.

However, the Court of Appeals denied Moose’s interpretation of the statute:

“Mr. Moose’s argument is unconvincing . . . A statute criminalizing malicious injury of a police dog plainly requires a definition of “maliciously” that applies to police dogs. Further, Mr. Moose’s reading of “maliciously” in RCW 9A.76.200 to require acting against “another person” violates multiple canons of statutory interpretation . . .

He suggests we read RCW 9A.76.200 so as to render the entire statute meaningless. This is an absurd result that was clearly not intended by the legislature. The State was not required to prove Mr. Moose harmed “another person” to prove he harmed a police dog, and the evidence at trial was sufficient to sustain his conviction.”

With that, the Court of Appeals upheld Moose’s conviction.

My opinion? In nearly every state, there are specific laws that, for all intents and purposes, equate an attack on a police dog as the same as an attack on a regular officer. WA State is no different, and the penalties are incredible harsh. Recently, a man was sentenced to 45 years for killing a police dog. Generally, though, individuals do have the right to resist unlawful arrests, excessive force, and unprovoked attacks from officers and K-9s.

However, when a police dog is attacking a person, depending on what the dog is doing, a person may be able to claim that the use of a police dog constitutes excessive force. Many police dogs are trained to “bite and hold” suspects, which as the name implies, involves a K-9 literally biting down on a suspect in order to prevent them from fleeing until human officers can arrive. Because dog bites can be extraordinarily severe, an individual may be justified in fighting back in that situation. Self-Defense may apply if the bite is drawing blood, or severely injuring an individual.

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 Strategy: The Lesser-Included Jury Instruction

Some Thoughts About Trial Strategy - California Desert Trial Academy College of Law

At trial, criminal defendants have the right for the jury to be instructed on any applicable lower or lesser-included crimes. The evidence must support an inference that the lesser crime was committed instead of the greater offense.

However, should defendants always seek lesser-included jury instructions if the facts warrant this strategy? Isn’t it true that giving a jury too many alternatives to decide convict ultimately result in a conviction? A recent case captured the trickiness of deploying (or not) the lesser-included jury instruction at trial.

In State v. Conway (10/27/22), the WA Court of Appeals held that Defense Counsel’s “all-or-nothing” trial strategy was effective, even when counsel declined to seek a lesser included jury instruction. The Court found Counsel’s decision was deliberate and strategic, and did not prejudice the defendant at trial.

BACKGROUND FACTS

Mr. Conway allegedly attacked three different individuals at the Spokane Amtrak Station in a series of incidents. The State charged Conway with one count of second degree assault, one count of third degree assault, and one count of fourth degree assault. At trial, defense counsel admitted to the fourth degree assault. He also admitted that the other crimes amounted to fourth degree assault. However, counsel did not request an instruction for a lesser-included offense. The jury found Conway guilty of second and fourth degree assault but acquitted him of third degree assault.

On appeal, Conway argues ineffective assistance of counsel for his attorney’s failure to request an instruction for the lesser-included offense of fourth degree assault.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Criminal defendants have a constitutionally guaranteed right to effective assistance of counsel. A defendant bears the burden of showing (1) that his counsel’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances and, if so, (2) that there is a reasonable probability that but for counsel’s poor performance, the outcome of the proceedings would have been different.

The Court further elaborated that In reviewing the record for deficiencies, there is a strong presumption that counsel’s performance was reasonable. The burden is on a defendant alleging ineffective assistance of counsel to show deficient representation.

“A decision by defense counsel to forgo an instruction on a lesser-included offense may be a legitimate trial tactic . . . Both the defendant and the State have the right to present an instruction for a lesser-included offense if all of the requirements have been met.” ~WA Court of Appeals, Division III.

Here, defense counsel’s decision to forgo an instruction on the lesser-included offense was not deficient. It was clearly strategic.

The Court of Appeals reasoned that there was strong evidence in support of the State’s assault charges. “The State presented the jury with undisputed video evidence of Conway assaulting the victims,” said the Court. “Because the State presented undisputed video evidence of the assaults, it was a legitimate trial tactic for defense counsel to admit that Conway had committed fourth degree assault.”

Moreover, even though an all-or-nothing strategy is legitimate regardless of success, in this case it worked. The jury acquitted Conway of third degree assault even though counsel acknowledged the assault.

With that, the Court of Appeals decided that Conway’s attorney was not constitutionally ineffective. “Defense counsel made a strategic decision to forego a lesser-included instruction on a felony assault charge,” said the Court. “The decision was not deficient and did not prejudice Conway at trial.” The Court upheld Conway’s conviction second and fourth degree assault.

My opinion? The above case captures the trickiness of allowing juries to convict a defendant of a lesser charge. In many cases, lesser included charges are important to defendants because jurors do not always exactly follow the law. For example, in an assault case, the jury might be so outraged at what they consider to be a brazen attack by the defendant that they don’t carefully consider whether the injuries were significant enough to rise to a felony or misdemeanor before returning a guilty verdict.

If the defense requests a lesser included charge of a lesser crime, the jury is more likely to carefully look at the evidence presented. Consequently, they may convict the defendant of the lesser crime if that is the only charge that they feel the evidence supported.

Requesting a lesser included charge is a double-edged sword, however. Some juries might have acquitted the defendant of assault if they didn’t believe that the prosecution proved that the incident was an upper-level felony. Ultimately, the key to deciding whether to request a lesser included charge is weighing the risks against the rewards.

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

Prosecutor’s Use of Term “Mexican Ounce” At Trial Was Race-Based Misconduct

Mexican Ounce (Minus Tax) : r/heroin

 In  State v. Ibarra-Erives (9/19/2022), the WA Court of Appeals reversed the defendant’s drug conviction because the Prosecutor ‘s use of the term “Mexican ounce” at trial was an intentional appeal to jurors’ potential bias.

BACKGROUND FACTS

In June 2018, the Snohomish Regional Drug Task Force executed a search warrant to recover drugs and related evidence in an apartment. A detective persuaded Mr. Ibarra Erives to open the door. Officers then “pulled him out onto the front landing” and arrested him. On the kitchen counter, police found white powder later determined to be methamphetamine.

On the closet shelf in a bedroom, officers discovered a backpack. The backpack contained
seven one-ounce “bindles” of methamphetamine and five bindles of heroin. The backpack did not contain any information identifying its owner. On the shelf next to the backpack, police found a digital scale and a box of plastic sandwich bags.

Ibarra-Erives admitted that he “temporarily” lived at the apartment. He told police he sometimes slept on the couch and sometimes on the pile of blankets officers observed in bedroom where they found the backpack. Ibarra-Erives said the prescription medication and clothes found on the floor of the bedroom were his. But he denied owning the backpack.

When police searched Ibarra-Erives’ pockets, they found a broken glass pipe used for smoking methamphetamine that had white residue and burn marks on it. He also had $591 in cash in his wallet. The State charged Ibarra-Erives with unlawful possession of a controlled substance with intent to manufacture or deliver.

At trial, Ibarra-Erives, who is Latinx, used a Spanish interpreter. During the State’s case in chief, the prosecutor questioned the lead detective about the amount of drugs found in the backpack in room. The detective testified that each “bindle” of methamphetamine weighed 28 grams, or 1 ounce. He then described the bindles of heroin, which each weighed 24.6 grams. He explained that for heroin, “25 grams is considered an ounce.”

When asked why, the detective responded, “I don’t know what the answer is to why, but the term on the street is it’s a Mexican ounce across the board, regardless of who is selling or buying 25 grams of a Mexican ounce.” Then in his closing argument to the jury, the prosecutor twice emphasized that each bindle of heroin had been packaged as a “Mexican ounce.”

The jury convicted Ibarra-Erives as charged. He appealed his conviction on arguments that the prosecutor’s remarks suggested that a Latinx person likely packed or possessed the drugs.  He argues the prosecutor used this gratuitous reference to connect him to the drugs. Consequently, this terminology invoked stereotypes of Mexican drug-dealing and dishonesty against him.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reversed Ibarra-Erives’ conviction.

The Court reasoned that a prosecutor’s zealous pursuit of justice is not without boundaries. However, prosecutors have a duty to the defendant to uphold their right to a fair trial.

“Prosecutors commit misconduct when they use arguments designed to arouse the passions or prejudices of the jury . . . These kinds of arguments create a danger that the jury may convict for reasons other than the evidence produced at trial. In cases where race should be irrelevant, racial considerations, in particular, can affect a juror’s impartiality and must be removed. ~WA Court of Appeals.

The Court further reasoned that an objective observer could view the prosecutor’s references “Mexican ounce” to describe the way heroin was packaged for sale as an intentional appeal to the jury’s potential bias. The term specifically suggests that the defendant was more likely to have possessed drugs packed to a “Mexican ounce” because he speaks Spanish and appears to be Latinx.

“Testimony that heroin is packaged in an amount commonly sold on the street is probative of an intent to sell the drugs. But the street term attributing that practice to a particular racial or ethnic group is not. And when the defendant appears to be a member of that same racial or ethnic group, such comments improperly suggest that he is more likely to have packaged or possessed the drugs.” ~WA Court of Appeals

With that, the WA Court of Appeals reversed the conviction.

My opinion? Good decision.  The prosecution took advantage of despicable stereotypes. In the State’s closing argument at trial, the prosecutor used the term “Mexican ounce” two times. The prosecutor’s use of the term was an apparently intentional appeal to jurors’ potential bias. It improperly suggested that Mr. Ibarra-Erives was more likely to have possessed drugs packed to a “Mexican ounce” merely because he speaks Spanish and appeared to be Latinx.

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

Prosecutor’s Filing Delay Held Unconstitutional

Solutions to the burden of backlog of cases - iPleaders

In State v. Stearns, the WA Court of Appeals held that the Prosecutor’s delay in filing charges violated the defendant’s due process rights.

FACTUAL BACKGROUND

In November 2020, a jury found Mr. Stearns guilty of felony murder in the first degree with sexual motivation. The charges arose from a 1988 incident where the victim’s body was discovered at a park.

In 2004, DNA evidence retrieved from the victim and scene connected Stearns to the incident. In 2005, law enforcement interviewed Mr. Stearns. The prosecutor assigned to the case later acknowledged that sufficient probable cause existed to charge Stearns with the murder. However, the proseutor did not file charges until 2017.

By then, multiple eyewitnesses interviewed by police in 1998 passed away during the delay between the State’s development of probable cause and charging. However, the trial court denied Stearns’s pretrial motion to dismiss based on preaccusatorial delay. In January 2020, a jury trial ultimately resulted in a hung jury. The court declared a mistrial.  The State retried Stearns in November 2020. This time, the jury found Stearns guilty as charged.

On appeal, Stearns argued that the lower court’s ruling on preaccusatorial delay deprived him of a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals (COA) said that  under State v. Maynard, a court will dismiss a prosecution for preaccusatorial delay if the State’s intentional or negligent delay violates a defendant’s due process rights.

Here, the filing delay actually prejudiced the defendant because a key eyewitness died months after the State filed charges and was unavailable for trial. Furthermore, the State’s reasons for the negligent filing delay were significantly outweighed by the actual prejudice to the defendant.  The prosecutor’s heavy caseload and the defendant’s lengthy incarceration on another case were not valid reasons for the late filing.

The Court of Appeals also reasoned the State violated the fundamental conceptions of justice by failing to file a murder charge with well-developed probable cause for 12 years. This late filing happened despite repeated status inquiries from other investigators and government actors involved in its investigation.

With that, the Court of Appeals reversed Stearn’s conviction and dismissed the case with prejudice.

Some legal insight is necessary. Pre-accusation delay motions (hereinafter “Due Process Motions”) are common among cold-case murders. For instance, investigators may not have enough evidence to legally effectuate an arrest at the time of the murder. The case goes “cold” until years later when DNA evidence links the original suspect to the murder. Due Process motions are brought to protect a criminal defendant for unfair delays which makes putting forth a defense impossible. To establish a due process violation a defendant must demonstrate prejudice. That is, the defendant must show that the pre-indictment delay impaired his or her ability to defend against the charge.

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

The Limits of Expert Witness Testimony

Expert Witness - Dr. Elisabeth "Eli" Sheff

In State v. Caril, the WA Court of Appeals held that a lower trial court did not violate the defendant’s Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

BACKGROUND FACTS

Mr. Caril was convicted of second degree murder. He asserts he was in a state of compromised mental health when he stabbed and killed a person.

During the night of June 22-23, 2017, Mr. Ross, Ms. Nguyen, and Mr. Pimenthal enjoyed a night out with a group of friends. In the early morning hours, they obtained take-out meals and sat on the curb outside the restaurant to eat. From across the street, an individual shouted, “Shut the fuck up,” and threw a two-liter soda bottle in their direction. It landed by their feet. Ross shouted back that throwing the bottle was a “good way to get your ass kicked.”

Ross observed the individual – later identified as the defendant Mr. Caril – walk across the street. He walked towards the group brandishing a knife. Ross told everyone to “run” and that the approaching individual had a knife. Nguyen and Ross withdrew. Unfortunately, Pimenthal was not able to do so in time. While running away, Ross saw Caril stab Pimenthal. Nguyen saw Caril “punch” Pimenthal three times in the chest. Mr. Hussen, who observed these events from his car nearby, exited his vehicle and shouted at Caril. Hussen asked if Carilwas “crazy” and “why” he stabbed Pimenthal. Caril asked Hussen if he “wanted some too.” Pimenthal died from his injuries.

Caril was charged with first degree murder. He was later charged with an additional count of second degree murder.

At trial, Caril, who suffers from paranoid schizophrenia, called an expert psychologist. The expert testified that Caril lacked the capacity to form criminal intent at the time of the incident. The trial court allowed this testimony. However, the trial judge prohibited Caril’s expert witness from testifying to hearsay statements from another psychologist’s report that the expert relied on. The court reasoned that the excluded statements concerned the collateral issues of Caril’s competency to stand trial and potential future need for civil commitment.

Caril was acquitted of first degree murder, but the jury found him guilty of the lesser included crime of second degree murder (intentional murder) with a deadly weapon. Caril was found guilty of second degree murder (felony murder) with a deadly weapon on count II.

On appeal, Caril argued the trial judge abused his discretion and violated his Sixth Amendment right to present a defense by prohibiting the defendant’s expert witness from testifying to hearsay statements from another psychologist’s report.

COURT’S ANALYSIS & CONCLUSIONS

The Court Appeals said that under the Sixth Amendment, a defendant has a constitutional right to present a defense. This right is not, however, absolute. It may bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible.

Furthermore, an expert witness is permitted to base an opinion on facts or data that are not admissible in evidence. Ths can happen under ER 703 if the facts or data are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Consequently, the trial court has discretion to determine the extent to which the expert may convey this information.

Here, the Court of Appeals reasoned that the hearsay statements were relevant to explain the basis for the expert’s opinion. However, it further reasoned that admitting them could confuse or mislead the jury. This was because the hearsay statements concerned collateral issues related to the defendant’s competency to stand trial and potential future need for civil commitment.  Moreover, the probative value of the statements was low. They were inadmissible as substantive evidence and relevant only for the purpose of providing additional context for the expert’s opinion.

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

Offender Scores Include Bail Jumping Even When the Underlying Conviction Was Dismissed Under State v. Blake

Felony Sentencing Guidelines | California Felony Attorney

In State v. Paniagua, the WA Court of Appeals held that convictions for Bail Jumping are appropriately included in the offender score even when the offender failed to appear at a scheduled hearing for a pending charge of Blake-related Drug Offense.

FACTUAL BACKGROUND

This appeal considered one of many consequences attended to the Washington Supreme Court’s landmark decision in charge of State v. Blake. The decision held Washington’s possession of a controlled substance criminal statute unconstitutional. In turn, Washington courts have removed, from offender scores, earlier convictions for possession of a controlled substance.

This appeal travels further down the path and asks whether a court should remove, from the offender score, a former conviction for bail jumping when the offender failed to appear at a scheduled hearing while on bail pending charges for possession of a controlled substance.

Victor Paniagua only challenges his sentence for his 2018 convictions for Homicide and other crimes. The relevant facts begin, however, with earlier convictions.

In 2007, the State of Washington convicted Victor Paniagua with unlawful possession of a controlled substance. In 2011, the State again convicted Paniagua with possession of a controlled substance and the additional charge of bail jumping. The bail jumping charge arose from Paniagua’s failure to appear at a court hearing on the 2011 possession charge.

In June 2018, a jury found Victor Paniagua guilty of second degree murder, second degree assault, unlawful possession of a firearm, and witness tampering. The trial court calculated Paniagua’s offender score at 8 for the murder and assault charges. It also calculated a 7 for the unlawful firearm possession and witness tampering charges. The offender score calculation included one point each for the 2007 and 2011 possession of a controlled substance convictions and one point for the 2011 bail jumping conviction. As a result, the
court then sentenced Paniagua to 453 months’ total confinement.

After the issuance of State v. Blake, Mr. Paniagua requested resentencing. He argued the superior court should resentence him and reduce his offender score by three points. Ultimately, the superior court deducted only two points from Paniagua’s offender score. The superior court resentenced Paniagua to 412 months’ total confinement.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that State v. Blake held that Washington’s drug possession statute violated the due process clause. The statute penalized one for passive, innocent, or no conduct without requiring the State to prove intent.

“The Washington Supreme Court also did not address, in State v. Blake, the retroactivity of its decision,” said the Court of Appeals. “Nevertheless, the State and other courts have operated on the assumption that Blake should be applied retroactively. If a statute is unconstitutional, it is and has always been a legal nullity.”

Next, the Court of Appeals decided whether the bail jumping conviction was invalid on its face. When a defendant is convicted of a nonexistent crime, the judgment and sentence is invalid on its face. Here, however, the State did not convict Mr. Paniagua of a nonexistent crime when convicting him of bail jumping. “The crime remains in existence today,” said the Court of Appeals. “The conviction is not facially invalid.”

Next, the court raised and dismissed Paniagua’s arguments that the State convicted him of bail jumping while facing charges brought pursuant to an unconstitutional statute:

“Still, he cites no decision supporting the proposition that being convicted or held, under an unconstitutional criminal statute, renders escaping from jail or bail jumping permissible. To the contrary, under the universal rule, the unconstitutionality of a statute under which the defendant was convicted or charged does not justify escape from imprisonment . . . We find no decision addressing bail jumping when facing charges under an unconstitutional statute.” ~WA Court of Appeals.

With that, the Court of Appeals affirm the superior court’s inclusion of Victor Paniagua’s 2011 conviction for bail jumping in his offender score and affirmed his 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.

Prosecutor’s “Gorilla Pimp” Comment Admonished by High Court

Gorilla Pimp the skunk ape by seraphonfire on DeviantArt

In State v. McKenzie, the WA Court of Appeals reversed the defendant’s convictions because the prosecutor improperly injected race into the trial and used the term “gorilla pimp” to describe the defendant.

BACKGROUND FACTS

In 2018, the defendant Mr. McKenzie, a 27-year-old Black man, was perusing the dating application Skout when he came across the profile for a white female named “‘Samantha.’”  Samantha’s profile listed her age as 18, and stated “‘Fun Times. My age is wrong. Daddy wanted.’” Samantha was actually a fictional person created by Detective Rodriguez of the Washington State Patrol’s missing and exploited children’s task force. They conduct undercover investigations to find sexual predators in part by using fictional profiles on social media and dating websites. The profile picture Mr. McKenzie viewed was that of an undercover female officer who was at least 22 years old.

The two continued to chat on Skout and then moved to text messaging on their
phones. During the text messaging, Samantha asked Mr. McKenzie if he was interested in being her pimp to which he replied, “Oh nah im not doing all that,” “Thats low. I dont need that & dont have time for all that. If you have a way to get money I support that,” and “But pimping? No thanks missed me with that one.”

Samantha made repeated suggestions that she and Mr. McKenzie meet up. The two discussed where to meet and Mr. McKenzie expressed concern that Samantha was “setting him up.” Later Mr. McKenzie asked Samantha about whether she had condoms. Mr. McKenzie drove from Seattle to Puyallup and waited for Samantha at an agreed meet location for just under 30 minutes. Unbeknownst to Mr. McKenzie, he was under surveillance the entire time he waited. After Mr. McKenzie messaged Samantha that he was giving up and leaving, law enforcement surrounded Mr. McKenzie’s car and placed him under arrest. A search of Mr. McKenzie’s car revealed a box of condoms on the passenger seat.

The State charged Mr. McKenzie with sex offenses to include one count of attempted second degree rape of a child and one count of communication with a minor for immoral purposes. Mr. McKenzie exercised his right to a jury trial.

At trial, Detective Rodriguez took the witness stand. The prosecutor initiated the following
exchange:

Q: Are you familiar with the terms gorilla pimp and romance pimp?
A: Yes.
Q: What are those?
A: A gorilla pimp is someone who is very aggressive. They’re very direct. They’re going to tell you what they want. “This is what you’re going to do.” I’ve had them try to get me or the people they’re victimizing to pay them for that. For them to be sexually exploited, they actually want the victim to pay them for it. As far as a romance pimp, they’re going to come across as your boyfriend or your friend. They’re going to romance you, get you into the situation where then they have control. They can continue to play the romance role or they can switch to a more aggressive pimp or they can go back and forth.
Q: So they’re not mutually exclusive?
A: No.
Q: The romance pimp angle can be used to gain confidence with a young person. And then once you’re engaged with them, the roles can change?
[DEFENSE COUNSEL]: Your Honor, leading.
THE COURT: Sustained.
Q: Can the roles change once they’re engaged?
A: Yes.
Q: Do Mr. McKenzie’s answers about, “I’m not into that. I would treat you right,” all of those kind of things, do they negate the possibility that he is looking to put Sam out?
A: No.

The defense never voiced a specific objection to the gorilla pimp concept. The prosecutor made no further reference to it. A jury found Mr. McKenzie guilty as charged. The court subsequently imposed a standard range sentence of 76.5 months to life in prison. Mr. McKenzie appealed on arguments that the prosecutor engaged in misconduct by injecting the racially charged term “gorilla pimp” into the trial.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals reversed the Defendant’s conviction. It reasoned that use of the term “gorilla pimp” by the State was not harmless error beyond a reasonable doubt. The court said that when a prosecutor improperly injects race into a criminal trial, a court will generally reverse the conviction.

“Racist rhetoric has no place in our justice system. It is hurtful, thwarts due process, and undermines the rule of law. ~WA Court of Appeals

The Court discussed the State’s argument that the term used was actually “guerrilla pimp.” However, that argument was unpersuasive to the court, which found the analogy of a “gorilla” to be particularly concerning:

“At this point in our history we should not have to belabor the point that using a gorilla analogy when discussing human behavior, specifically the behavior of a Black man, is clearly racist rhetoric,” said the Court of Appeals. It reasoned that individuals involved in criminal enterprises use racialized language that is sometimes offensive. However, that is no excuse for outsiders to do the same.

“The only purpose served by referencing the gorilla pimp concept was to tap into deepseated racial prejudice by comparing Black human beings to primates. The State cannot prove that this racist rhetoric was harmless beyond a reasonable doubt. We therefore reverse Mr. McKenzie’s conviction.” ~WA Court of Appeals

My opinion? Great decision. The type of racist rhetoric invoked by the Prosecution appears to have especially strong pull. A six-year study of undergraduates at Stanford University and Pennsylvania State University showed young people are swayed by Black-ape associations, even when they claim to know nothing about the historical context of racist simianization. According to this study, undergraduates who were exposed to words associated with apes were more likely to condone the beating of those in police custody when they thought the suspect was Black.

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

Confrontation, Video Testimony & COVID

Legal Videography - Compass Reporting | Litigation Support Concierge

In State v. Milko, the WA Court of Appeals held that a defendant has a right to have witnesses present in the courtroom. However, that right can be overcome. Here, the trial court lawfully allowed witnesses to testify by video when they had health related concerns about contracting COVID-19.

FACTUAL BACKGROUND

In 2018, Milko on five separate occasions contacted women who were paid escorts. He
arranged to meet them at houses in Puyallup that he did not live in or own. When each
woman arrived, Milko displayed a knife in an attempt to take their money or to rape them.

The State charged Milko with 12 felony offenses related to five incidents and five
victims. The charges included Burglary, Robbery and Sex Offenses.

Milko’s trial was set for July 2020. At the time, COVID-19 had been declared a global pandemic and a national emergency in the United States. In February 2020, Governor Jay Inslee had proclaimed a state of emergency in Washington. He issued a number of proclamations designed to help curb the spread of COVID-19. The Supreme Court ordered all courts to follow the most protective public health guidance applicable in their jurisdiction and to use remote proceedings for public health and safety whenever appropriate.

Also, the CDC and the Washington Department of Health recommended social distancing measures of at least six feet between people and encouraged vulnerable individuals to avoid public spaces. The CDC encouraged people to avoid traveling because travel increased a person’s chance of getting infected and spreading COVID-19. The CDC noted that older adults and people of any age with serious underlying medical conditions, such as diabetes and asthma, were at a higher risk for severe illness from COVID-19.

The trial court granted the State’s request to allow two State’s witnesses to testify remotely. One witness was SANE nurse Ms. Biddulph. The other witness was victim JA.

At trial, the five victims and several investigating officers testified in person about the
incidents giving rise to the charges. Biddulph testified by two-way video about examining BP and completing a rape kit for her. JA testified by two-way video about Milko contacting her for her paid escort services in Florida and raping her at knifepoint. The trial court instructed the jury that the State was offering JA’s testimony only to establish identity, a common scheme or plan, and/or modus operandi.

The jury found Milko guilty of all charges except for attempted first degree robbery. He appealed on arguments that the trial court violated the confrontation clause by allowing witnesses to testify by video because of COVID-19 concerns.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals (COA) explained that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that a person accused of a crime has the right “to be confronted with the witnesses against him.” Nevertheless, the COA quoted  Maryland v. Craig, and other cases holding that video testimony does not violate the confrontation clause if it ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.

Here, the COA upheld the trial court’s findings that Biddulph’s traveling to Washington would place her and her children at risk of negative health consequences regarding COVID-19 were warranted. Biddulph in particular had health concerns about her one year-old daughter, who had compromised health. And the court made a finding that Biddulph’s health care provider “advised against travel in order to protect the health of Ms. Biddulph and her small child.” The court’s ultimate finding was that Biddulph could not travel to Washington to testify because travel will place her at a significantly higher risk of exposure to the virus.

“Accommodating Biddulph’s health concerns was more than a matter of convenience,” said the COA. In addition, it reasoned that concern for the health of a third person may be sufficient to support a finding of necessity. “This is especially true in a pandemic. Given the nature of the COVID-19 pandemic, the risk to the health of Biddulph and her child if Biddulph was required to travel to Washington was significant and more than de minimis.”

The COA also found that the trial court found that JA’s health concerns due to her diabetes and asthma were warranted. These conditions would “place her at a higher risk of suffering severe health consequences if she were to contract COVID 19.”  Further, the COA upheld the trial court’s findings that JA’s conditions “make it difficult, if not impossible, to wear a face mask for an extended period of time, including on a cross-country flight.” The court’s ultimate finding was that “J.A.’s health is currently compromised, and she is at a higher risk of serious medical complications should she contract COVID-19.”

“We conclude that these findings support the conclusion that video testimony was necessary to protect JA’s health. Accommodating JA’s health conditions was more than a matter of convenience. Given the nature of the COVID-19 pandemic, the risk to JA’s health if she was required to travel to Washington was significant and more than de minimis.” ~WA Court of Appeals.

The COA concluded that the trial court did not err in allowing Biddulph and JA to testify remotely by video and their testimony did not violate Milko’s confrontation right. Consequently, the COA affirmed Milko’s convictions and sentence.

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

Rape By Forcible Compulsion

Sexual Assault Laws WA State | Tario & Associates, P.S.

In State v. Gene, the WA Court of Appeals held that for a charge of Rape in the Second Degree by Forcible Compulsion, the force must be directed at overcoming the victim’s resistance. If a victim is unconscious or unable to respond there is no resistance to overcome.

BACKGROUND FACTS

The defendant Mr. Gene and K.M. had a “brother-and-sister-like friendship.” During the summer of 2018, they hung out almost all the time every weekend together with a group of their friends. On the evening of August 29, 2018, Gene and two of his friends, Jesus Montano and Sedrick Hill, went to K.M.’s apartment. K.M.’s friend Rachel Charles was already present. The group used the hot tub in K.M.’s apartment complex, consumed alcohol, and listened to music. At some point during the evening, they went up to K.M.’s apartment and played a drinking game.

Eventually, K.M. began to feel unstable and sick. She went to the bathroom and began vomiting. Still feeling nauseous and dizzy, K.M. went to her bedroom to sleep. K.M. felt uncomfortable and nauseous in her bed, so she took a comforter and slept in a fetal position on the floor. At trial, K.M. testified that Gene sexually assaulted her while she slept on the floor.

Gene was charged with numerous counts of Rape in the Second Degree by Forcible Compulsion. A jury found Gene not guilty of Counts 1 and 3, and guilty of Count 2. Gene appealed his  sole conviction on arguments that insufficient evidence existed to support it.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals began by defining “Forcible compulsion” under the statute.
In short, “Forcible compulsion” means physical force which overcomes resistance, or a threat, express or implied, that places a person in fear of death or physical injury to herself or himself or another person, or in fear that she or he or another person will be kidnapped.

Next the Court interpreted WA’s case law. Quoting State v. McKnight, it said that in order for there to be forcible compulsion, there must have been force that was “directed at overcoming the victim’s resistance and was more than that which is normally required to achieve penetration.” Furthermore, the resistance that forcible compulsion overcomes need not be physical resistance, but it must be reasonable resistance under the circumstances.

“Here, viewing the evidence in the light most favorable to the prosecution, K.M. did not resist the penetration of her vagina by Gene’s penis. K.M.’s testimony, set forth in full above, was that she was unconscious or unable to respond when Gene engaged in sexual contact with her. Because K.M. was unable to respond, she could not resist the penile-vaginal assault and there was no resistance for Gene to overcome.” ~WA Court of Appeals

Accordingly, under these circumstances, no reasonable juror could find beyond a reasonable doubt that Gene resorted to forcible compulsion to engage in penile penetration of K.M.’s vagina. Thus, the evidence was insufficient. With that, the Court of Appeals reversed Gene’s conviction and remanded for further proceedings.

However, the Court of Appeals also mentioned Gene for rape in the second degree by means of engaging in sexual intercourse with a person who is incapable of consent by reason of being physically helpless or mentally incapacitated.

Please contact my office if you, a friend or family member are charged with a sex ofense or any other crime. The Fourteenth Amendment due process clause both requires that
every element of a charged crime be proved beyond a reasonable doubt and
guarantees a defendant the right to a unanimous jury verdict. Hiring an effective and competent defense attorney is the first and best step toward justice.

Attorney-Client Communications During COVID

Defendant in credit union robbery makes initial appearance | News, Sports, Jobs - Messenger News

This is an interesting case that arose in the early days of the COVID-19 Pandemic.

In State v. Anderson, the WA Court of Appeals held that courts must try to ensure that criminal defendants are able to confidentially communicate with counsel throughout court proceedings. Failure to provide a confidential means to communicate may be grounds for reversal on appeal.

FACTUAL BACKGROUND

In 2016, a Franklin County jury convicted Mr. Anderson of multiple felonies including murder, assault, and unlawful possession of a firearm. Mr. Anderson received a sentence of 1,126 months’ imprisonment with 36 months’ community custody, and was assessed $75,430.49 in restitution. A portion of the restitution was imposed jointly and severally with two codefendants.

Three specific issues were identified for resentencing: a vague community custody
condition, two scrivener’s errors, and imposition of discretionary legal financial
obligations in light of Mr. Anderson’s indigence.

A re-sentencing hearing was scheduled to address some concerns Mr. Anderson raised. His resentencing took place in the early days of the COVID-19 pandemic. Washington’s governor declared a state of emergency on February 29, 2020. Shortly thereafter, our Supreme Court began issuing a series of emergency orders addressing court operations during the pandemic. On April 29, 2020, the Supreme Court
issued an order that specified as follows:

Courts must allow telephonic or video appearances for all scheduled criminal and juvenile offender hearings whenever possible. For all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

Mr. Anderson attended the May 12 resentencing hearing via video. His attorney appeared telephonically. The hearing was very brief, generating only seven substantive pages of a report of proceeding. During the hearing, there was no discussion regarding whether Mr. Anderson had consented to appear via video.

Nor was there any clarification about whether Mr. Anderson and his attorney were able to communicate throughout the hearing. The parties agreed to modify the judgment and sentence according to the three issues identified in our prior decision. When addressed by the court, Mr. Anderson confirmed he agreed with the modifications.

At the hearing’s close, the court asked Mr. Anderson if he had been able to hear and understand the proceedings. Mr. Anderson responded affirmatively, but also asked how he was supposed to pay the outstanding restitution. The court instructed Mr. Anderson to confer with his attorney. Mr. Anderson subsequently asked the court how long he had to appeal the decision. The court told him that he had 30 days to make a direct appeal, and that he should speak to his attorney regarding the process. The hearing then adjourned.

Mr. Anderson filed a timely notice of appeal. He argues the videoconference resentencing hearing deprived him of his right to be present and to confer with counsel.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying the right to counsel applies to all critical stages of criminal proceedings, including resentencing.

“The constitutional right to counsel demands more than just access to a warm body with a bar card,” said the Court. “Among other things, it requires individuals charged with crimes to be able to confer privately with their attorneys at all critical stages of the proceedings.” It further reasoned that the ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful. “It is the role of the judge make sure that attorneys and clients have the opportunity to engage in private consultation.”

The Court relied on State v. Gonzalez-Morales, a WA Supreme Court case with similar issues. In Gonzalez-Morales, the defendant’s rights were violated when the trial court failed to give him an interpreter to communicate with his attorney.

“Mr. Anderson argues his case fails to meet the constitutional standard recognized
in Gonzales-Morales,” said the Court of Appeals. “We agree.”

“Unlike what happened in Gonzales-Morales, the trial court here never set any ground rules for how Mr. Anderson and his attorney could confidentially communicate during the hearing. Nor were Mr. Anderson and his attorney physically located in the same room, where they might have been able to at least engage in nonverbal communication.

Given Mr. Anderson participated by video from the jail and his attorney was appearing by telephone from a separate location, it is not apparent how private attorney-client communication could have taken place during the remote hearing. It is unrealistic to expect Mr. Anderson to assume he had permission to interrupt the judge and court proceedings if he wished to speak with his attorney.” ~WA Court of Appeals

Despite the communication obstacles, the Court nevertheless held Mr. Anderson was not entitled to relief because of harmless error. It also said that although Mr. Anderson was not entitled to relief, this case is a cautionary tale for trial judges administering remote criminal proceedings:

“The COVID-19 pandemic has complicated the administration of justice in innumerable ways. Videoconferencing has been an essential component of continued court operations. But courts must ensure videoconferencing occurs in a way that allows for private attorney client consultation. The best method is to arrange for attorneys and clients to be located in a shared physical space, with access to additional communication technologies (such as text messaging devices) if necessary to maintain physical distancing.”

My opinion? The COVID-19 Pandemic has certainly increased the difficulty of practicing law. Courtroom proceedings went virtual or were put on hold, causing delays in justice. Law schools and bar exams were upended. The shift was dramatic. We’ve had to learn new technologies and skills. We’ve had to revolve our practice to adhere and comply with new Executive Orders from our courts. And In the face of change and challenge, we do what American lawyers have done since lawyers helped found this country: we choose to get to work to help to solve the problems before us.

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.