Category Archives: Washington Court of Appeals

Jail Mail

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In State v. Irby, the WA Court of Appeals held that an inmate’s 6th Amendment rights were violated and has case was prejudiced when jail guards opened and read his confidential “jail mail” letters written to his defense attorney.

BACKGROUND FACTS

In April 2005, Irby was charged with one count of burglary in the second degree, alleged to have occurred on March 6, 2005, and the following counts alleged to have occurred on March 8, 2005: one count of aggravated murder in the first degree with an alternative allegation of first degree felony murder, one count of burglary in the first degree, one count of robbery in the first degree, three counts of unlawful possession of a firearm in the first degree, and one count of attempting to elude a police vehicle. The latter charges arose out of a robbery and bludgeoning death.

In January 2007, a jury found Irby guilty of murder in the first degree with aggravating circumstances, felony murder in the first degree, and burglary in the first degree. Four years later, the Washington Supreme Court reversed the judgment of conviction and remanded the cause for a new trial in light of the court’s determination that Irby’s due process rights had been violated during jury selection. See State v. Irby, 170 Wn.2d 874, 246 P.3d 796 (2011).

Irby’s retrial was held in 2013. The State prosecuted the same charges that were brought during the first trial and Irby was convicted as charged. Notably, at the retrial, Irby was allowed to proceed pro se. He also voluntarily absented himself from the trial. We subsequently reversed the judgment of conviction and remanded the cause for yet another new trial because the trial judge had erroneously seated a juror who had demonstrated actual bias against Irby during voir dire.

In March 2016, pretrial proceedings began for Irby’s third trial. He was represented by a public defender. In mid-March, the State filed an amended information charging Irby with one count of premeditated murder in the first degree and one count of burglary in the first degree. Two days later, Irby appeared in court and was arraigned on the charges. He entered pleas of not guilty.

In mid-March and again in late March, Irby requested to represent himself. Following a colloquy with the trial court in mid-April, Irby’s request was granted. Four months later, Irby filed a pro se motion to dismiss the charges against him. In his motion, Irby alleged misconduct by jail guards, claiming that (during the period of time during which his public defender represented him) they had improperly opened outgoing mail containing privileged legal communication intended for his attorney.

The trial court denied Irby’s motion. The trial court did determine that the jail guards had violated Irby’s right to counsel by opening and reading privileged attorney-client communications. Although Irby argued that the trial court’s determination mandated that a presumption of prejudice be imposed, the trial court placed on Irby the burden of proving prejudice and concluded that he did not do so.

One month later, Irby informed the trial court that he had decided not to attend the trial and waived his right to be present at trial.

After a jury was selected without Irby’s participation, the evidentiary stage of Irby’s third trial began. Irby did not attend the trial. The State presented its case in chief and gave closing argument. No defense or closing argument were presented on Irby’s behalf.

The jury returned verdicts finding Irby guilty as charged. Irby was sentenced to concurrent terms of incarceration of 388 months for the murder in the first degree conviction and 54 months for the burglary in the first degree conviction.

ISSUES

1. Did a State actor participate in the infringing conduct alleged by the defendant?

2. If so, did the State actor(s) infringe upon a Sixth Amendment right of the defendant?

3. If so, was there prejudice to the defendant? That is, did the State fail to overcome the presumption of prejudice arising from the infringement by not proving the absence of prejudice beyond a reasonable doubt?

4. If so, what is the appropriate remedy to select and apply, considering the totality of the circumstances present, including the degree of prejudice to the defendant’s right to a fair trial and the degree of nefariousness of the conduct by the State actor(s)?

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals decided  the “State actors” engaged in misconduct.

“Irby’s motion to dismiss alleged that the confrontation between himself and the State involved conduct by jail guards employed by the county jail in which he was being housed,” said the Court of Appeals. “Thus, Irby established that the conduct underlying his claim involved State actors.”

Second, the Court decided  that the jail guards’ conduct infringed upon his Sixth Amendment right.

“Plainly, a defendant’s Sixth Amendment right to assistance of counsel is violated when the State intrudes into a privileged attorney-client communication,” said the Court of Appeals.

The court reasoned that here, Irby’s motion to dismiss—and accompanying exhibits and addendum—alleged that he had sent 14 pieces of confidential correspondence containing privileged information to his attorney that, he argued, had been improperly opened and read by jail guards in the Skagit County Jail. The correspondence constituted Irby’s handwritten statements on both a “Public Defender Request Form” and jail kites—multi-purpose request forms available to inmates in the Skagit County Jail.

Prior to sending the correspondence, Irby folded each piece of paper in half, sealed each piece of paper with tape, and written on the outward facing side, “CONFIDENTIAL,” and “ATTORNEY BOX.” Consequently, the Court of Appeals said the folded and taped pieces of paper were intended to be confidential and included privileged attorney-client information. “Thus, the aforementioned correspondence from Irby to his counsel contained privileged attorney-client information protected by the Sixth Amendment.”

Third, the Court of Appeals held that the  jail guards’ opening and reading of Irby’s privileged attorney-client correspondence infringed upon his Sixth Amendment right to counsel. The parties do not dispute the trial court’s finding that jail guards had opened and read Irby’s privileged attorney-client communications. “Thus, the jail guards—and therefore the State—infringed on Irby’s Sixth Amendment right to counsel. This constitutes misconduct, within the meaning of CrR 8.3.”

Finally, the Court of Appeals decided Irby was prejudiced by the misconduct:

“More than half a century ago, our Supreme Court ruled that, when State actors pry into a defendant’s privileged attorney-client communications, prejudice to the defendant must be presumed . . . We must assume that information gained by the sheriff was transmitted to the prosecutor and therefore there is no way to isolate the prejudice resulting from an eavesdropping activity, such as this.”

The Court of Appeals further reasoned that recently, our Supreme Court in Pena Fuentes reaffirmed this ruling and, in light of a State actor’s eavesdropping on privileged attorney-client communications, imposed a presumption of prejudice.

Furthermore, because the State actors here at issue—jail guards—infringed upon Irby’s Sixth Amendment right, prejudice must be presumed. Thus, the trial court erred by not imposing a presumption of prejudice after it determined that the jail guards had opened and read Irby’s communications containing privileged attorney-client information.

With that, the Court of Appeals reversed the order denying Irby’s motion to dismiss and remanded this matter for an evidentiary hearing with instructions to the trial court.

My opinion? Excellent decision by the Court of Appeals. It most certainly violates a defendant’s constitutional rights for state actors like jailers, law enforcement and Prosecutors to read mail from an inmate intended for an attorney.

Please read my Legal Guide titled Making Bail and contact my office if you, a friend or family member face criminal charges and are incarcerated awaiting trial. Being in jail is never wise if it can be avoided. Chances are, a qualified and competent attorney can argue for personal release, lowered bail or convince the judge to release the defendant to a family member who is willing to supervise the defendant’s whereabouts.

DV & Cohabitating Parties

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In State v. Shelley, the WA Court of Appeals reversed the the defendant’s domestic violence convictions and held that a man, who is cohabitating with a woman and her child, does not necessarily have a “family or household” relationship to the child.

BACKGROUND FACTS

From late 2013 until April 2015, Defendant Aaron Shelley, his girlfriend Cheri Burgess, and her son from another relationship, A.S., lived with Shelley’s aunt and uncle.

On the evening of April 29, 2015, Shelley became angry and wanted Burgess to leave the house. After attempting to force Burgess out of the house, Shelley placed a knife against Burgess’s throat and stated he was going to kill her because she was not leaving. Shelley’s uncle, Mr. Sovey, intervened and convinced Shelley to give him the knife.

While Burgess and Sovey were talking in the kitchen, Shelley took A.S. out to the car. When Burgess confronted Shelley, Shelley grabbed A.S. by the throat. A.S. made a choking noise, “like he couldn’t breathe.” And when Burgess tried to grab A.S., Shelley said, “If you don’t leave or get away, I’m just gonna squeeze him, keep squeezing him. Get away from me. Leave, leave. Just effing leave. Leave my boy.” After Sovey came outside, Burgess walked away and called the police.

The State charged Shelley with, among other things, two counts of second degree assault as to Burgess, one count of second degree assault of a child as to A.S., and one count of felony harassment for threatening to kill A.S. The State alleged each crime was one of domestic violence.

The jury convicted Shelley of one count of assault as to Burgess. The jury found this was a crime of domestic violence because Shelley and Burgess were members of the same family or household. The jury also convicted Shelley of one count of assault as to A.S. and one count of felony harassment.

Shelley appealed on the issue of whether he was properly convicted of domestic violence acts against A.S.

COURT’S ANALYSIS AND CONCLUSIONS

The WA Court of Appeals reasoned that under RCW 10.99.020(3) and RCW 26.50.010(6), “family or household members” includes the following:

“Spouses, former spouses, persons who have a child in common regardless of whether they have been married or have lived together at any time, adult persons related by blood or marriage, adult persons who are presently residing together or who have resided together in the past, persons sixteen years of age or older who are presently residing together or who have resided together in the past and who have or have had a dating relationship, persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship, and persons who have a biological or legal parent-child relationship, including stepparents and stepchildren and grandparents and grandchildren.”

“The State had the burden of establishing Shelley and A.S. had a biological or
legal parent-child relationship,” said the Court. “It is undisputed that Shelley is not A.S.’s biological father because Shelley and Burgess did not meet until she was six months
pregnant.”

The Court also raised and dismissed the State’s arguments that Shelley’s presumption of parentage was proven under RCW 26.26.116 of the Uniform Parentage Act. “The State did not present the trial court with any evidence of such a judicial determination,” said the Court of Appeals. “On this record, the State’s presumptive parent and de facto parent
theories fail.”

The Court concluded that because A.S. and Shelley are not family or household members, the domestic violence special verdicts on count 3, second-degree assault of a child, and count 4, felony harassment, were invalid as a matter of law.

Please contact my office if you, a friend or family member are charged with DV crimes involving the children of unmarried boyfriends/girlfriends or domestic partners.  Like this case shows, the Prosecution may be unlawfully charging defendants with DV crimes when it lacks the authority to do so.

Evidence of Forgery

Bellingham Defense Attorney, felony, Forgery, Rule of Lenity, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Bradshaw, the WA Court of Appeals held that sufficient evidence existed to convict the defendant, an escrow agent, of forgery.

BACKGROUND FACTS

In 2014, Defendant/Appellant Stacy Bradshaw was a licensed escrow agent and the owner of North Sound Escrow. By law, an escrow agent must maintain several types of liability insurance. Bradshaw had coverage for crime as well as for errors and omissions through the insurance firm USI Kibble & Prentice. The limits were $1 million per claim.

In February 2014, Bradshaw was retained as the escrow agent for the sale of commercial property for the price of approximately $1.4 million. Umpqua Bank was the lender for one of the parties. Umpqua asked Bradshaw for a copy of her insurance information. Bradshaw obtained a “Certificate of Liability Insurance” from Kibble & Prentice showing her limits of $1 million.

She gave Umpqua a copy of the certificate that was altered to represent that Bradehaw had coverage limits of $2 million. Umpqua noticed the alterations and contacted both Kibble & Prentice and the Department of Financial Institutions, the agency that regulates escrow agents. This led to the prosecution of Bradshaw on one count of forgery.

Bradshaw waived her right to a jury trial and opted instead for a bench trial. The court convicted Bradshaw  as charged and sentenced her to 40 hours of community service, $3,600 in financial restitution, and 6 months of community supervision. Bradshaw’s appeal challenges the sufficiency of the evidence.

LEGAL ISSUE

Whether sufficient evidence exists to uphold the defendant’s forgery conviction.

RULE

A person is guilty of Forgery if, with intent to injure or defraud: (a) He or she falsely makes, completes, or alters a written instrument or; (b) He or she possesses, utters, offers, disposes of, or puts off as true a written instrument which he or she knows to be forged.

ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the trial court correctly determined that the Certificate of Liability Insurance has legal efficacy as a written instrument and a public record. The court reasoned that a written instrument is broadly defined in the current statute as “Any paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification.”

The Court reasoned that the certificate holder named on Bradshaw’s certificate of liability insurance is the Washington State Department of Financial Institutions. The Certificate was filed with the department as evidence that Bradshaw was in compliance with coverage requirements. Finally, the certificate had material significance to the Washington State Department of Financial Institutions.

“As part of the licensing process, and under statute, an escrow agent must submit proof of financial responsibility to the department, including a fidelity bond providing coverage in the aggregate amount of one million dollars,” said the Court. Furthermore, under the Washington Administrative Code, to demonstrate compliance with the requirement for a fidelity bond, the applicant is required to provide the department with a certificate of insurance that includes the aggregate amount of coverage. By statute, maintaining such insurance is “a condition precedent to the escrow agent’s authority to transact escrow business in this state.”

The Court raised and dismissed Bradshaw’s arguments that the evidence is insufficient to prove her certificate of insurance is a public record because the State did not establish that anyone in the department scrutinized it during the process of renewing her license.

“Bradshaw cites no authority for this proposition, and we have found none,” said the Court.

“In short, the record shows that Bradshaw’s certificate of insurance was a type of document required by law to be filed and necessary or convenient to the discharge of the duties of the department. In view of the regulatory scheme, the trial court reasonably found that a certificate of insurance coverage for an escrow agent is a written instrument, the alteration of which supports a forgery charge because it is a public record with legal efficacy.”

With that, the Court held that sufficient evidence supports the trial court’s determination that Bradshaw’s certificate of insurance had legal efficacy as a foundation for legal
liability.

Finally, the Court raised and dismissed arguments that the Rule of Lenity supports the reversal of her conviction.  “The rule of lenity operates to resolve statutory ambiguities in favor of criminal defendant,” said the Court. “It ensures fair warning by so resolving ambiguity in a criminal statute as to apply it only to conduct clearly covered.” The Court reasoned that here, because Bradshaw’s conduct is clearly covered by the statute, the rule of lenity is not applicable.

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.

The Particularity Requirement for Search Warrants

Access Devices, Bellingham Defense Attorney, Cell Phone, Constitutional Rights, Drug Offenses, Evidence, felony, Forensics, law enforcement, Methamphetamine, No Contact Order, police, Probable Cause, Search and Seizure, Search Warrant, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. McKee, the WA Court of Appeals held that a search warrant that authorized the police to search and seize a large amount of cell phone data, including images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, and tasks, and authorized a “physical dump” of “the memory of the phone for examination,” violated the particularity requirement of the Fourth Amendment.

BACKGROUND FACTS

In 2012, A.Z. lived with her older brother and her mother in Anacortes. All parties were addicted to heroin, methamphetamine or both. A.Z. was using heroin and methamphetamine on a daily basis during 2012.

In January 2012, A.Z.’s mother introduced A.Z. to 40-year-old Marc Daniel McKee during a “drug deal” for methamphetamine. McKee started spending a lot of time with the family and supplied them with methamphetamine. They would often “get high” together. At the end of June, McKee left to go to Alaska for work.

When McKee returned two months later, he immediately contacted A.Z. McKee told A.Z. he had heroin and methamphetamine. McKee and A.Z. spent three days together at a Burlington motel using the drugs and engaging in consensual sex.

Eventually, A.Z’s mother confronted McKee about the sexual encounters between A.Z. and McKee. Bringing another male with her A.Z.’s mother confronted McKee at a hotel room, beat him up, took his cell phone, and pulled A.Z out of the room. Later, A.Z.’s mother scrolled through the phone. She found pictures and videos of her daughter A.Z tied naked to a bed as well as videos of McKee and A.Z. having sex.

After A.Z.’s mother looked at the video clips and photographs on the cell phone, she contacted the Mount Vernon Police Department. On October 30, A.Z.’s mother met with Detective Dave Shackleton. A.Z.’s mother described the video clips and photographs she saw on the cell phone. She left the cell phone with Detective Shackleton. Later, A.Z.’s mother contacted Detective Shackleton to report that J.P., another minor female, told her that McKee gave J.P. drugs in exchange for sex. Brickley obtained a restraining order prohibiting McKee from contacting A.Z.

Application for a Search Warrant

On October 31, Detective Jerrad Ely submitted an application and affidavit (Affidavit) in support of probable cause to obtain a warrant to search McKee’s cell phone to investigate the crimes of “Sexual Exploitation of a Minor RCW 9.68A.040” and “Dealing in Depictions of a Minor Engaged in Sexually Explicit Conduct RCW 9.68A.050.” The court issued a search warrant.

The warrant allowed the police to obtain evidence from the cell phone described as an LG cell phone with model VX9100 currently being held at the Mount Vernon Police Department for the following items wanted:

“Images, video, documents, text messages, contacts, audio recordings, call logs, calendars, notes, tasks, data/internet usage, any and all identifying data, and any other electronic data from the cell phone showing evidence of the above listed crimes.”

The search warrant authorizes the police to conduct a “physical dump” of the memory of
the cell phone for examination. On November 7, 2012, the court filed a “Receipt of Execution of Search Warrant.” The Receipt of Execution of Search Warrant states the police conducted a “Cellebrite Dump” of the cell phone on November 6. Cellebrite software obtains all information saved on the cell phone as well as deleted information and transfers the data from the cell phone to a computer.

Criminal Charges

The State charged McKee with three counts of Possession of Depictions of Minors Engaged in Sexually Explicit Conduct in the First Degree in violation of RCW 9.68A.070(1) based on the three cell phone video clips, one count of Possession of Depictions of a Minor Engaged in Sexually Explicit Conduct in the Second Degree in violation of RCW 9.68A.070(2) based on the cell phone photographs, one count of Commercial Sex Abuse of J.P. as a minor in violation of RCW 9.68A.100, three counts of Distribution of Methamphetamine and/or Heroin to a person under age 18 in violation of RCW 69.50.406(1) and .401(2), and one count of Violation of a No-Contact Order in violation of RCW 26.50.110(1).

Motion to Suppress

McKee filed a motion to suppress the evidence the police seized from his cell phone. McKee asserted the search warrant violated the Fourth Amendment requirement to describe with particularity the “things to be seized.” McKee argued the warrant allowed the police to search an “overbroad list of items” unrelated to the identified crimes under investigation. McKee also argued probable cause did not support issuing a search warrant of the cell phone for the crime of dealing in depictions of a minor engaged in sexually explicit conduct.

The court entered an order denying the motion to suppress. The court found the allegations in the Affidavit supported probable cause that McKee committed the crimes of sexual exploitation of a minor and dealing in depictions of minors engaged in sexually explicit conduct. The court concluded the citation to the criminal statutes established particularity and the search warrant was not overbroad.

At trial, the jury found McKee not guilty of distribution of methamphetamine and/or heroin. The jury found McKee guilty as charged on all other counts.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals held that the search warrant violated the particularity requirement of the Fourth Amendment, and that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.

The Court reasoned that the Fourth Amendment was adopted in response to indiscriminate searches and seizures conducted under the authority of ‘general warrants.’

“The problem posed by the general warrant is not that of intrusion per se, but of a general,
exploratory rummaging in a person’s belongings,” said the Court. “The Fourth Amendment
addresses the problem by requiring a particular description of the things to be seized . . .

The court further reasoned that by limiting the authorization to search to the specific areas and things for which there is probable cause to search, the requirement ensures that the search will be carefully tailored to its justifications, and would not take on the character of the wide-ranging exploratory searches the Framers of the Constitution intended to prohibit.

“The degree of specificity required varies depending on the circumstances of the case and the types of items,” said the Court. “The advent of devices such as cell phones that store vast amounts of personal information makes the particularity requirement of the Fourth Amendment that much more important.” The Court also quoted language from the U.S. Supreme Court’s Riley v. California and the WA Supreme Court’s State v. Samilia; both cases strongly supporting the notion that cell phones and the information contained therein are private affairs because they may contain intimate details about individuals’ lives.

“Here, the warrant cites and identifies the crimes under investigation but does not use the language in the statutes to describe the data sought from the cell phone,” said the Court. “The warrant lists the crimes under investigation on page one but separately lists the “Items Wanted” on page two.” Consequently, the Court reasoned that the description of the “Items Wanted” was overbroad and allowed the police to search and seize lawful data when the warrant could have been made more particular.

Furthermore, the Court held that the warrant in this case was not carefully tailored to the justification to search and was not limited to data for which there was probable cause. The warrant authorized the police to search all images, videos, documents, calendars, text messages, data, Internet usage, and “any other electronic data” and to conduct a “physical dump” of “all of the memory of the phone for examination.”

“The language of the search warrant clearly allows search and seizure of data without regard to whether the data is connected to the crime,” said the Court. “The warrant gives the police the right to search the contents of the cell phone and seize private information with no temporal or other limitation.” As a result, reasoned the Court, there was no limit on the topics of information for which the police could search. Nor did the warrant limit the search to information generated close in time to incidents for which the police had probable cause:

“The warrant allowed the police to search general categories of data on the cell phone with no objective standard or guidance to the police executing the warrant. The language of the search warrant left to the discretion of the police what to seize.”

With that, the Court of Appeals held the search warrant violated the particularity requirement of the Fourth Amendment. The Court reversed and dismissed the four convictions of Possession of Depictions of a Minor Engaging in Sexually Explicit Conduct.

My opinion? For the most part, courts look dis favorably on the searches of people’s homes, cars, phones, etc., unless the probable cause for the search is virtually overwhelming, and/or an emergency exists which would spoil the evidence if it was not gathered quickly; and/or a search warrant exists. Even when search warrants are drafted and executed, they must be particular to the search. In other words, law enforcement can’t expect that a general, non-specific search warrant is going to win the day for them and allow a fishing expedition to take place.

Here, the Court of Appeals correctly followed the law. In this case, limiting the search to the crimes cited on the first page of the warrant was insufficient. The descriptions of what to be seized must be made more particular by using the precise statutory language to describe the materials sought.

Please read my Search and Seizure Legal Guide and contact my office if you, a friend or family member’s person, home, vehicle or cell phone was searched by police and evidence was seized. The search may have been unlawfully conducted in violation of your Constitutional rights.

Unlawful Imprisonment Evidence

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In  State v. Scanlan, the WA Court of Appeals upheld the defendant’s conviction for Unlawful Imprisonment because there was evidence that  the victim told his doctor that he had been imprisoned in his home for two days against his will by the Defendant.

BACKGROUND

In 2013, Bagnell, an 82-year-old widower, was living independently in the Federal Way home that he had shared with his wife of more than 50 years. Sometime in 2013, Bagnell met Scanlan, a woman 30 years his junior. They quickly became friends and about two months later, Scanlan moved in with Bagnell.

On October 16, 2014, the Federal Way Police Department responded to Bagnell’s home after receiving a 911 hang-up call. The officers found Bagnell and Scanlan inside the home. Scanlan was uninjured, but Bagnell, who was dressed in a t-shirt and underwear, had wounds on his head, arms, and legs. After questioning Scanlan, the officers arrested her. As a result of the incident, a court order was issued prohibiting Scanlan from contacting Bagnell.

A few weeks later, on November 6, 2014, Bagnell’s adult children grew concerned after Bagnell missed a scheduled meeting with them. After trying and failing to reach him on his cell phone and home phone, Bagnell’s children went to Bagnell’s house to check on him.

When Bagnell’s children arrived at his house, they found it dark. Its blinds were
drawn and all of the interior and exterior lights were out. The children thought this was
odd and moved up to the front porch to try to see inside. From the porch they could see the glow of the television and shadowy movements. They rang the doorbell and
knocked but received no answer. Bagnell’s children were alarmed and opened the door
with an emergency key.

Inside, they found Bagnell’s home in disarray. Trails of blood ran across the carpet and up the stairs, gouges marked the walls, and broken household items and debris lay on the floor. A golf club leaned against a wall, and a hammer lay on a coffee table. A crowbar was on the dining room table, and a broken broom handle stood in a garbage bucket in the middle of the family room’s floor. Bagnell sat alone in a chair in the family room, dazed, bleeding from several wounds, and severely bruised such that “His face was black.” Bagnell at first appeared to be unconscious, but he began to respond to their attempts to rouse him as they called 911.

Roughly 15 minutes later, Federal Way Police Officer Brian Bassage arrived at Bagnell’s home. Just as Officer Bassage arrived, Scanlan was found hiding under a blanket in the front seat of a car in the garage. As Officer Bassage removed her from the car, Bagnell’s daughter yelled out at her that she had “just beat her father half to death, that there was blood everywhere.” Scanlan shouted back, “It’s not that bad.” At the police station, Scanlan claimed to be injured. The police took pictures, but did not detect any significant injuries. Scanlan did not receive medical treatment.

Bagnell was transported to the hospital where he was treated in the emergency room for his injuries which included: extensive bruising all over his body, four large open wounds on his legs, wounds on his arms, and fractures on both hands. Bagnell was treated in the emergency room by emergency room Nurse Catherine Gay and Dr. Robert Britt. Bagnell also met with social worker Jemina Skjonsby.

After treatment, but prior to his release, Bagnell met with Federal Way Police Department Detective Adrienne Purcella from about midnight to 1:00 a.m. Bagnell signed a form medical records waiver at 12:55 a.m.

Bagnell did not testify at trial. However, the trial court admitted statements that Bagnell made to medical providers in the emergency room, as well as subsequent statements made to his primary care physician and wound care medical team.

In November 2015, the State charged Scanlan with assault in the second degree (count 1), felony violation of a court order (count 2), unlawful imprisonment (count 3), and assault in the fourth degree (count 4). All counts contained a domestic violence allegation. The jury found Scanlan guilty of assault in the second degree, felony violation of a court order, and unlawful imprisonment.

Scanlon appealed her convictions She contends that, among other issues, there was insufficient evidence to support the charge of unlawful imprisonment.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals held there is sufficient evidence of unlawful imprisonment.

The Court reasoned that when reviewing a claim for the sufficiency of the evidence, it considers whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Furthermore, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the defendant. A claim of insufficiency admits the truth of the State’s evidence and all inferences that reasonably can be drawn therefrom. Finally, circumstantial evidence is as reliable as direct evidence. However, inferences based on circumstantial evidence must be reasonable and cannot be based on speculation.

In this case, the State charged Scanlan with unlawful imprisonment under RCW 9A.40.040 which states: “A person is guilty of unlawful imprisonment if he or she knowingly restrains another person.” To prove restraint, the State had to prove that Scanlan restricted Bagnell’s movements (a) without consent and (b) without legal authority, in a manner which interfered substantially with his liberty. Restraint is without consent if it is accomplished by physical force, intimidation, or deception.

The Court reasoned that first, Bagnell told his physician Dr. Britt that he had been in his home for two days, that he had been imprisoned, or at least held in his home, against his will. Also the physician’s assistant testified that Bagnell told her that Scanlan locked him in a room: “He was living with a girlfriend at the time who had locked him in a room and had beat him with a candlestick, a broom and a hammer over multiple areas,” said the physician’s assistant, who also testified at trial.

Second, circumstantial evidence supports the inference that Scanlan used force or the threat of force to restrain Bagnell. Bagnell’s children found the front door locked, their father in a stupor, the house in disarray, and a broken broom, hammer, golf club, and crowbar. Bagnell’s children were also unable to contact their father by phone. Additionally, Bagnell’s cell phone was found broken, a battery was found to have been removed from a cordless phone in the home, and another phone was found to have no dial tone.

“Viewed in the light most favorable to the State, this is sufficient evidence of unlawful imprisonment.”

With that, the Court of Appeals affirmed Scanlan’s conviction for unlawful imprisonment.

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.

Drive-By Shooting Conviction Reversed

Bellingham Defense Attorney, Drive-By Shooting, felony, Firearm, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

5 Democratic senators point to NRA support for Kavanaugh in urging SCOTUS to drop gun case

In State v. Vasquez, the WA Court of Appeals held that the drive-by sentence aggravator is not met where a perpetrator ran 63 feet from his vehicle and around the corner of a grocery store prior to shooting and killing the victim.

BACKGROUND FACTS

Mr. Vasquez shot and killed Mr. Garcia as Mr. Garcia was seated in the front passenger side of a GMC Envoy parked at the Airport Grocery in Moses Lake, Washington. Mr. Garcia’s girlfriend was in the front driver’s seat and her five-year-old child was in the back seat, behind Mr. Garcia. Neither Mr. Garcia’s girlfriend nor her child were physically injured during the shooting.

At the crux of this case is the route Mr. Vasquez took to shoot Mr. Garcia.

For several minutes prior to the shooting, the Envoy was parked near the Airport Grocery’s front entrance. Mr. Vasquez then arrived at the scene in a Toyota pickup. The Toyota was parked on the side of the grocery, next to a fenced utility area, approximately 63 feet away from the Envoy.

Once the Toyota was parked, Mr. Vasquez ran from the pickup and hid behind the utility fence for nearly a minute. Mr. Vasquez then rushed around the corner of the grocery, across the front-side of the Envoy, and over to the area of the front passenger window of the Envoy. The front window was partially rolled down, exposing Mr. Garcia to Mr. Vasquez.

Mr. Vasquez shot and killed Mr. Garcia from point-blank range. Mr. Vasquez then retreated to the Toyota and it sped away. The entire shooting was captured on video by the grocery’s surveillance system. Approximately one minute and 16 seconds elapsed between the Toyota’s initial arrival and ultimate departure.

A jury convicted Mr. Vasquez of first degree murder with a drive-by shooting aggravator, along with several counts of drive-by shooting. Mr. Vasquez was sentenced to life imprisonment without parole for the aggravated first degree murder conviction. He also received a 60-month firearm enhancement. Mr. Vasquez appealed on arguments that the evidence was insufficient to prove a drive-by shooting.

COURT’S ANALYSIS & CONCLUSIONS

Washington’s drive-by shooting statute states, in pertinent part:

A person is guilty of drive-by shooting when he or she recklessly discharges a firearm as defined in RCW 9.41.010 in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the immediate area of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.

The legal question was whether the State’s evidence showed Mr. Vasquez was in the “immediate area” of the Toyota pickup truck at the time of the shooting. Viewing the evidence in the light most favorable to the State, the Court of Appeals held the “immediate area” requirement was not met.

The Court of Appeals explained that a drive-by shooting is commonly understood to involve shots fired from inside a vehicle, or from “within a few feet or yards” of the vehicle. In other words, the crime contemplates a shooter who is either inside a vehicle or within easy reach of the vehicle.

“Mr. Vasquez’s offense did not fall within either circumstance,” reasoned the Court of Appeals. It further reasoned that Mr. Vasquez was far from reach of the Toyota at the time he shot Mr. Garcia. “In fact, Mr. Vasquez had to traverse several intervening obstacles in order to get a clear shot at his victim,” said the Court. “Although Mr. Vasquez was in the immediate area of Mr. Garcia’s Envoy at the time of the shooting, he was not in the immediate area of the Toyota that had transported him to the scene. Mr. Vasquez’s offense therefore does not qualify as a drive-by shooting.”

The Court concluded that because Mr. Vasquez was neither inside the Toyota nor within immediate reach of the Toyota at the time of the shooting, the State failed to present sufficient evidence justifying Mr. Vasquez’s convictions for drive-by shooting as well as the drive-by shooting aggravator to Mr. Vasquez’s first degree murder conviction.

Consequently, the Court reversed Vasquez’s drive-by shooting convictions and aggravator.

My opinion? The circumstances of this case are certainly tragic. However, it’s not uncommon for Prosecutors to charge people for crimes which don’t fit the facts and circumstances. That’s why it’s extremely important to hire a qualified and competent defense attorney who knows and understands the law. Defense counsel must question the evidence and, when necessary, argue pretrial motions to dismiss charges where evidence is lacking.

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.

Emergency Blood Draws

Bellingham Defense Attorney, Blood Test, Constitutional Rights, DUI, Exigent Circumstances, Fourth Amendment, Implied Consent, Probable Cause, Search Warrant, Skagit County Criminal Defense, Vehicular Assault, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Image result for hospital airlift

In State v. Inman, the WA Court of Appeals held that a warrantless blood draw was proper under exigent circumstances where: (a) the injury collision occurred in a rural area; (b) there is spotty phone service; (c) a search warrant takes 30-45 minutes to create; and (d) helicopters airlifted the DUI suspect to a hospital. A search warrant is not required before a blood sample collected under the exigent circumstances exception is tested for alcohol and drugs.

BACKGROUND FACTS

In May 2015, Inman and Margie Vanderhoof were injured in a motorcycle accident on a
rural road. Inman was the driver of the motorcycle and Vanderhoof was his passenger. Captain Tim Manly, the first paramedic on the scene, observed a motorcycle in a ditch and two people lying down in a driveway approximately 20 to 25 feet away. Captain Manly observed that Inman had facial trauma, including bleeding and abrasions on the face, and a deformed helmet. Based on Inman’s injuries, Captain Manly believed that the accident was a high-trauma incident.

Captain Manly learned from a bystander that Inman had been unconscious for approximately five minutes after the collision before regaining consciousness. Manly
administered emergency treatment to Inman, which included placing Inman in a C-Spine, a device designed to immobilize the spine to prevent paralysis.

While Captain Manly provided Inman with treatment, Sergeant Galin Hester of the Washington State Patrol contacted Vanderhoof, who complained of pelvic pain. Sergeant Hester spoke with Inman and smelled intoxicants on him.

Later, Jefferson County Sheriff’s Deputy Brandon Przygocki arrived on the scene and observed a motorcycle in a ditch with significant front-end damage.  He contacted Inman in the ambulance and, smelling alcohol, asked whether Inman had been drinking and driving. Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

Deputy Przygocki believed he had probable cause to believe Inman was driving under the influence. Helicopters came to airlift Inman and Vanderhoof to the nearest trauma center. Deputy Przygocki knew that preparation of a search warrant affidavit takes 30-45 minutes. There was no reliable cell phone coverage in the rural area. Deputy Przygocki conducted a warrantless blood draw after reading a special evidence warning to Inman informing him that he was under arrest and that a blood sample was being seized to determine the concentration of alcohol in his blood.

There is a process by which a search warrant for a blood draw may be obtained
telephonically and executed by an officer at the hospital to which Inman was being transported. However, this process is problematic and, in the experience of Officer Hester, had never worked in the past.

TRIAL COURT PROCEDURES

Inman was charged with vehicular assault while under the influence and filed a motion to
suppress evidence of the warrantless blood draw. He argued that the implied consent statute authorized a warrantless blood draw but that the implied consent statute was not constitutional, so there was no valid authority for the blood draw. He also argued that the exigent circumstances exception to the warrant requirement did not justify a warrantless blood draw in this case.

In response, the State argued that Inman’s blood was lawfully drawn pursuant to the exigent circumstances exception to the warrant requirement.

The trial court heard testimony from six witnesses, who testified consistently with the
factual findings summarized above. The trial court orally ruled that exigent circumstances justified the blood draw and later entered written findings of fact and conclusions of law.

Inman filed a reconsideration motion. He argued that there was no probable cause for DUI. He also argued that, even assuming that exigent circumstances justified the warrantless blood draw, a warrant was needed to test the blood. The State disagreed.

The trial court denied Inman’s reconsideration motion. The trial court concluded that Deputy Przygocki had probable cause to believe Inman had committed a DUI. In addition, the trial court concluded that the warrantless blood draw was justified under the exigent circumstances exception to the warrant requirement. Finally, the trial court concluded that because the blood was lawfully seized under exigent circumstances, no warrant was required to test the blood. After a stipulated facts trial, the trial court found Inman guilty of vehicular assault. Inman appealed.

COURT’S CONCLUSIONS AND ANALYSIS

  1. The Arrest Was Supported by Probable Cause.

The Court of Appeals reasoned that under both the Fourth Amendment of the United States Constitution and article I, section 7 of the Washington Constitution, an arrest is lawful only when supported by probable cause. Probable cause exists when the arresting officer, at the time of the arrest, has knowledge of facts sufficient to cause a reasonable officer to believe that an offense has been committed. Whether probable cause exists depends on the totality of the circumstances.

Here, Deputy Przygocki had probable cause to believe Inman had committed a DUI. When Deputy Przygocki arrived on the scene, he observed a motorcycle in a ditch with significant front-end damage and, after running the license plates, knew the vehicle belonged to Inman. Deputy Przygocki learned from Sergeant Hester that Inman was in the ambulance and smelled of alcohol. Deputy Przygocki then contacted Inman in the ambulance, and Inman admitted he had been driving the motorcycle and that he had been drinking before he drove.

“Based on these facts, Deputy Przygocki knew that Inman was driving the motorcycle after drinking alcohol when he crashed. This knowledge is sufficient to cause a reasonable officer to believe that Inman was driving a motor vehicle under the influence of alcohol,” said the Court of Appeals.

2. Exigent Circumstances Supported a Warrantless Blood Draw.

The Court of Appeals reasoned that a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution, unless an exception to the warrant requirement authorizes the search. Drawing a person’s blood for alcohol testing is a search triggering these constitutional protections. A warrantless search is allowed if exigent circumstances exist.  The exigent circumstances exception to the warrant requirement applies where the delay necessary to obtain a warrant is not practical because the delay would permit the destruction of evidence.

“The natural dissipation of an intoxicating substance in a suspect’s blood may be a factor in determining whether exigent circumstances justify a warrantless blood search, but courts determine exigency under the totality of the circumstances on a case-by-case basis.”

The Court of Appeals held that under the circumstances, obtaining a warrant was not practical. Inman and Vanderhoof were both injured from a motorcycle accident that resulted in significant front-end damage to the motorcycle, which was found in a ditch. Both Inman and Vanderhoof received emergency medical services, and Inman was receiving treatment for possible spine injuries. At the time of the blood draw, helicopters were coming to airlift Inman and Vanderhoof to the nearest hospital. It would have taken at least 45 minutes to prepare and obtain judicial approval for a search warrant. Deputy Przygocki lacked reliable cell phone coverage in the rural area, so obtaining a telephonic warrant may have been a challenge.

CONCLUSION

The Court of Appeals concluded that the trial court did not err in denying Inman’s suppression motion. First, there was probable cause to arrest Inman for DUI. Second, exigent circumstances existed to authorize a warrantless blood draw. Third, the implied consent statute does not bar a warrantless search under exigent circumstances. Finally, a legal blood draw under the exigent circumstances exception allows testing of the blood without a warrant when there is probable cause to arrest for DUI.

My opinion? Exigent circumstances are one of many arguments that the government uses to get around search warrant requirements. Contact my office if you, a friend or family member face criminal charges involving DUI, blood draws, or exigent circumstances which arguably circumvent the need for officers to obtain search warrants. In difficult cases like the one described above, competent legal counsel is definitely needed to protect constitutional rights against unlawful search and seizure.

Burglary of Inmate’s Cell?

Assault, Bellingham Defense Attorney, Burglary, felony, Jury Trial, Skagit County Criminal Defense, Theft, Uncategorized, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Dunleavy, the WA Court of Appeals held that a jail cell is a separate building for purposes of supporting a burglary charge/conviction, and the that the victim’s jail cell need not be secured or occupied at the time of the crime in order to support the charge.

BACKGROUND FACTS

Dunleavy was an inmate at the Walla Walla County jail in Unit E. In Unit E, there are eight cells capable of housing two inmates per cell. The cells open into a day room. In Unit E, the cell doors are open from about 6:00 a.m. until 9:00 p.m. An inmate is permitted to close his cell door, but if he does, the door will remain locked until opened the next morning.

Dunleavy was hungry one day, so he asked inmate Kemp LaMunyon for a tortilla. LaMunyon responded that he did not have enough to share, but would buy more later and share with Dunleavy at that time. Dunleavy later bullied LaMunyon and threatened to “smash out.” Soon after, inmate John Owen attacked LaMunyon. During the attack, Dunleavy snuck into LaMunyon’s jail cell and took some of LaMunyon’s food. LaMunyon was seriously injured by Owen. Jail security investigated the fight and the theft, and concluded that the two were related. Security believed that Dunleavy staged the fight between Owen and LaMunyon to give him an opportunity to take LaMunyon’s food.

Because of the seriousness of LaMunyon’s injuries, and because security concluded that the fight and the theft were related, the jail referred charges to the local prosecuting authority. The State charged Dunleavy with second degree burglary, third degree theft, and second degree assault. After the State presented its case, Dunleavy moved to dismiss the second degree burglary charge on the basis that an inmate’s cell is a separate building. The trial court considered the parties’ arguments, denied Dunleavy’s motion to dismiss, and the case continued forward.

Dunleavy called one witness who testified that Dunleavy did not conspire with Owen to assault LaMunyon. After closing arguments, the case was submitted to the jury. The jury began deliberating at 1:30 p.m. At 4:00 p.m., the jury sent a written note to the trial court through the bailiff. The note asked, “Are the Walla Walla county jail policies legally binding? Are they considered law? What if we are not unanimous on a certain count?” The trial court, counsel, and Dunleavy discussed how the trial court should respond. The trial court’s response read, “You are to review the evidence, the exhibits, and the instructions, and continue to deliberate in order to reach a verdict.” No party objected to this response.

Less than one hour later, the jury returned a verdict finding Mr. Dunleavy guilty of second degree burglary and third degree theft but not guilty of second degree assault.

ISSUES

Dunleavy appealed on the issues of whether (1) jail cells are separate buildings for purposes of proving burglary, and (2) whether there is an  implied license for unlawful entry.

COURT’S ANALYSIS & CONCLUSIONS

1. Jail cells are separate buildings for purposes of proving burglary.

The Court of Appeals reasoned that under statute, a person is guilty of burglary in the second degree if, with intent to commit a crime against a person or property therein, he or she enters or remains unlawfully in a building other than a vehicle or a dwelling. Furthermore, Washington law defines “building” in relevant part as any structure used for lodging of persons; each unit of a building consisting of two or more units separately secured or occupied is a separate building.

With these legal definitions in mind, the court noted that that a jail is a building used for lodging of persons, specifically inmates. Each cell is secured at night and an inmate can secure his cell from others. Furthermore, each cell is separately occupied by two inmates. “We discern no ambiguity,” said the Court of Appeals. “A jail cell is a separate building for purposes of proving burglary.”

2. No implied license for unlawful entry.

The Court of Appeals raised and dismissed Dunleavy’s arguments that he did not commit burglary when he entered LaMunyon’s cell because his entry was lawful from an implied license to enter the cell.

Contrary to Dunleavy’s argument, the Court explained that under Washington law, a person ‘enters or remains unlawfully’ in or upon premises when he or she is not then licensed, invited, or otherwise privileged to so enter or remain.”

The Court of Appeals explained that the victim, LaMunyon, did not give Dunleavy permission to enter his cell. Furthermore, the Jail Sergeant testified that inmates are told when they are first booked into jail that they may not enter another inmate’s jail cell.

“Inmates are subject to punishment for breaking these rules, including criminal charges,” said the Court of Appeals. “A rational jury could find beyond a reasonable doubt that Dunleavy entered LaMunyon’s cell unlawfully.”

Consequently, the Court of Appeals affirmed Dunleavy’s conviction, yet remanded for resentencing on the separate issue that his offender score was incorrectly calculated.

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.

Driving With Wheels Off the Roadway

Bellingham Defense Attorney, Driving While License Suspended/Revoked, Driving With Wheels Off Roadway, misdemeanor, police, Rule of Lenity, Skagit County Criminal Defense, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Whatcom County Criminal Defense, , , , ,

Image result for ON RAMP

In State v. Brooks, the WA Court of Appeals held that the neutral area separating a highway on-ramp from an adjacent lane of travel does not meet the definition of “roadway.” A driver who crosses this area is properly stopped for a violation of Driving with Wheels Off Roadway under RCW 46.61.670.

BACKGROUND FACTS

While merging onto westbound U.S. Route 97 from U.S. Route 2 in Chelan County, Jena Brooks’s car crossed over a portion of the highway designated as a “neutral area.” A neutral area is a paved triangular space separating an entrance or exit ramp from an adjacent lane of highway. The neutral area between Route 97 and its merger with westbound Route 2 is marked on each side by thick white channelizing lines. The drawing below is a depiction of a neutral area similar to the one crossed by Ms. Brooks:

Image result for ON RAMP NEUTRAL AREA

A Washington State Patrol trooper observed Ms. Brooks’s vehicular activity and performed a traffic stop. Ms. Brooks was ultimately arrested for driving on a suspended license and other misdemeanor offenses.

During proceedings in district court, Ms. Brooks filed a motion to suppress, arguing her vehicle had been stopped without probable cause. The motion was denied. Pertinent to this appeal, the district court ruled Ms. Brooks’s merger over the highway’s neutral area constituted “driving with wheels off roadway,” in violation of RCW 46.61.670. 2

Ms. Brooks was subsequently convicted of several misdemeanor offenses after a jury trial. Later, she successfully appealed the suppression ruling to the superior court. It found Washington’s definition of a roadway ambiguous in the context of a highway’s neutral area. The superior court then invoked the rule of lenity and determined Ms. Brooks should not have been stopped for driving with wheels off the roadway in violation of RCW 46.61.670.

ISSUES

The Court of Appeals addressed (1) whether the term roadway is ambiguous in the current context, and (2) if the term is ambiguous, whether the rule of lenity is an available tool of statutory construction that might benefit a defendant such as Ms. Brooks.

ANALYSIS & CONCLUSIONS

“A highway’s neutral area is not a vehicle lane. It is too short to facilitate meaningful travel. And its triangular shape cannot consistently accommodate the size of a vehicle. Rather than being designed for vehicular travel, it is apparent the neutral area is designed as a buffer zone. It keeps vehicles separate so as to facilitate speed adjustment and, in the context of a highway on-ramp, safe vehicle merging.”

The Court further reasoned that National standards set by the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) confirmed its observations about the apparent design purpose of a highway’s neutral area. In short, the Court reasoned the MUTCD refers to the neutral area as an “island.” As such, it is an area intended for vehicle “separation.”

“Although a neutral area may be designated either by a wide or double solid white channelizing line, the two options carry no substantive significance” said the Court of Appeals. “Like a double white line, a solid white line can serve as an indicator that crossing is prohibited. The whole point of a neutral area is to exclude vehicles and promote orderly and efficient traffic flow,” said the Court of Appeals.

The Court concluded that Ms. Brooks failed to maintain her vehicle wheels on an area of the highway meeting the statutory definition of a roadway. A vehicle stop was therefore permitted under Washington’s wheels off roadway statute. Consequently, the superior court’s order on appeal from the district court is reversed.

Surprisingly, there’s quite a bit of caselaw on what constitutes “Driving With Wheels Off the Roadway.” Please contact my office if you, a friend or family member face criminal charges following after a police officer pullover where this citation led to arrest. It’s quite possible to suppress the fruits of a search based on unlawful stop, search and/or seizure.

Witness Tampering

Bellingham Defense Attorney, Drug Offenses, Methamphetamine, Skagit County Criminal Defense, Theft of Motor Vehicle, Washington Court of Appeals, Whatcom County Criminal Defense, Witness Tampering, , , , ,

FCC Regulates Prison Phone Call Prices: No More $14 a Minute Rates

In State v. Gonzalez, the WA Court of Appeals decided there was sufficient evidence that the defendant attempted to influence a witness to testify falsely where he asked the witness to give a different story than the one she told the police.

BACKGROUND FACTS

The defendant Leonel Gonzalez was in a relationship with Nona Hook for several years. Hook lived with her mother, Carol Salyers, and several other family members, and Gonzalez was frequently in the home. Salyers owned a Jeep and permitted Hook, but not Gonzalez, to drive it.

In the early morning hours of September 21, Gonzalez called Hook, and she asked him if
he had taken her Jeep. According to Hook, Gonzalez denied knowing anything about the Jeep, but he told her that he was “coming home.” At some point after this call, someone contacted the police.

The police were waiting when Gonzalez arrived at Hook’s home in the Jeep. Upon seeing
the police, Gonzalez drove away, jumped out of the Jeep while it was still moving, and attempted to flee on foot. The Jeep rolled into and damaged a parked vehicle. The police caught and arrested Gonzalez. Following his arrest, officers discovered a white substance that later tested positive for both methamphetamine and cocaine in Gonzalez’s back pocket.

Jail Call

While in jail following his arrest, Gonzalez called Hook. This call was recorded.

During the call, Gonzalez insisted that Hook listen to him and told her that some people
were trying to contact her and that when his “investigator” or “somebody” called her, she was to tell them that she “gave him permission.” Hook responded, “Tell them that I gave you permission,” and Gonzalez interrupted her and told her to “listen” and said adamantly, “That’s it.”

Hook responded by chuckling and saying, “That’s gonna be a little bit hard for me to do.”  Gonzalez appears to respond, “Well, then don’t do it.” The rest of Gonzalez’s response is unclear.

Hook replied, “I mean, for one thing, I was—you already know what the deal was.” And Gonzalez told her aggressively to “listen” and that they were not “going to talk about all that.” He then stated, “You know what to do, so.” Gonzalez and Hook then talked about when Hook could visit so they could talk about their relationship and whether they would marry even if he was in prison. During this part of the conversation, Hook commented about how hard it was for her to be away from him, and Gonzalez responded by asking her whether she “would rather deal with” 6 or 15 years.

Criminal Charges

The State charged Gonzalez with theft of a motor vehicle, unlawful possession of a controlled substance (methamphetamine), hit and run, and tampering with a witness.

Jury Trial & Appeal

At trial, Ms. Hook testified about the jail calls. Ultimately, the jury found Gonzalez guilty of unlawful possession of a controlled substance and tampering with a witness.

Gonzalez appealed under arguments that the evidence was insufficient to support the witness tampering conviction because (1) he asked Hook to speak to his investigator and never discussed her testimony and (2) there was no evidence he was asking Hook to testify falsely.

COURT’S ANALYSIS & CONCLUSIONS

Gonzalez argues that the State failed to prove that he was attempting to influence Hook to
testify falsely because he asked her to tell the defense investigator only something different than she told the police. He asserts that speaking to the defense investigator is not the equivalent of testimony.

“We disagree,” said the Court of Appeals. The Court reasoned that Gonzalez’s request that Hook tell the defense investigator a different story than she told the police would have little effect if it did not also imply that Hook needed to also be willing to testify consistently with what she told the defense investigator. “Thus, a rational finder of fact could have easily found that Gonzalez was attempting to influence Hook’s potential testimony,” said the Court.

Gonzalez also argued that there was insufficient evidence to establish that he asked Hook
to testify falsely.

“Again, we disagree,” said the Court of Appeals. “At no point in her testimony did Hook testify that she had given Gonzalez permission to take the Jeep on September 18th,” said the Court. Instead, she testified that she dropped Gonzalez off, drove the Jeep home and parked it, and left the keys near the back door. Although Gonzalez came into her bedroom the next morning, Hook did not testify that he asked for or that she gave him permission to drive the Jeep.

The Court of Appeals further reasoned that taking this evidence in the light most favorable to the State, the jury could find that Hook’s testimony established that Gonzalez took the Jeep without her permission and that Hook’s testimony was truthful.

“Given that Gonzalez asked Hook to state that she had given him permission, a rational finder of fact could have easily found that Gonzalez was asking Hook to testify falsely. Accordingly, Gonzalez’s insufficient evidence arguments fail, and we affirm his witness tampering conviction.”

In sum, the Court of Appeals affirmed Gonzalez’s convictions, but remanded for re-sentencing on the unlawful possession of a controlled substance conviction consistent with this 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.