Category Archives: Washington Court of Appeals

Deported After Conviction

Alford Plea, felony, Immigration, Ineffective Assistance, Sixth Amendment, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Manajares, The WA Court of Appeals Division III upheld the defendant’s 2002 conviction because at the time it was unforeseeable that the plea would result in deportation.

In December 2002, defendant Jose Manajares entered an Alford plea to one count of Unlawful Imprisonment, a Class C Felony. Before accepting the plea, the court asked Mr. Manajares if he understood that his “plea of guilty to this count is grounds for deportation from the United States, … exclusion from admission to the United States and denial of naturalization,” and he answered “Yes.” The court accepted the plea and sentenced Mr. Manajares.

Shortly after he entered the plea, Mr. Manajares was removed from the United States by the United States Immigration and Naturalization Service.

Almost 10 years after his 2002 conviction, Mr. Manajares filed a CrR 7.8 motion to vacate his Alford plea. He argued he received ineffective assistance of counsel because Manjares’s defense attorney failed to advise him that his conviction could result in deportation.

The Court reasoned that when determining whether a defense attorney provided effective assistance, the underlying test is always one of “reasonableness under prevailing professional norms.”

PADILLA V. KENTUCKY.

In Padilla, the United States Supreme Court recognized that immigration law can be complex,” and that “some members of the bar who represent clients facing criminal charges … may not be well versed in it.  Because “there will, therefore, undoubtedly be numerous situations in which the deportation consequences of a particular plea are unclear or uncertain,” the Court announced the following standard for assessing a criminal defense lawyer’s duty:

“When the law is not succinct and straightforward … a criminal defense attorney need do no more than advise a non-citizen client that pending criminal charges may carry a risk of adverse immigration consequences. But when the deportation consequence is truly clear, … the duty to give correct advice is equally clear.”

Therefore, the Court of Appeals reasoned whether Mr. Manajares’s ineffective assistance of counsel claim depended on whether truly clear adverse immigration consequences would follow from his 2002 plea that defense counsel failed to apprehend and explain.

IMMIGRATION & NATIONALITY ACT.

The Court also reviewed the Immigration and Nationality Act, “which holds that any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of … a crime involving moral turpitude ( other than a purely political offense) … is inadmissible.” 8 U.S.C. § 1182(a)(2)(A)(i)(I). Here, the court reasoned it was unclear to both Mr. Manjares’s immigration attorney and his appellate attorney whether a conviction for unlawful imprisonment was an aggravated felony or a crime of moral turpitude which automatically triggers deportation.

Additionally, the court reasoned it is not automatically deficient performance for a lawyer to permit a client to enter an Alford plea. For all of these reasons, the Court decided there was ultimately no deficient performance on the part of defense counsel.

Mr. De Long’s review with Mr. Manajares of the general statutory deportation warning was therefore competent representation.

My opinion? In 2010, the U.S. Supreme Court’s Padilla v. Kentucky set the “bright line rule” that criminal defense attorneys must warn non-citizen clients of the risk of deportation if the defendant is considering a guilty plea. Employing Strickland v. Washington‘s test for evaluating whether legal counsel was “ineffective,” the Court held that criminal defense attorneys have an affirmative duty to warn their non-citizen clients of whether their guilty pleas carry a risk of removal from the United States, If counsel fails to issue a warning, he or she violates the defendant’s Sixth Amendment right to effective assistance of counsel.

Here, Padilla’s 2010 guidelines rules were not in effect because the defendant entered his plea in 2002. Therefore, defense counsel was no deficient in his performance.

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.

Misconduct at Closing

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

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

BACKGROUND

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

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

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

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

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

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

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

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

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

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

THE COURT’S ANALYSIS

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

Expert Testimony of Grooming.

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

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

Arguing Facts Not in Evidence.

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

Flagrant, Ill-Intentioned & Incurable Prejudice.

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

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

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

With that the Court reversed Phelps’ conviction.

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

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

 

Overbroad Parolee Searches

Bellingham Defense Attorney, Constitutional Rights, Department of Corrections, Drug Offenses, Evidence, felony, Firearm, Nexus, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Livingston, the WA Court of Appeals Division II held that evidence collected during a warrantless search of the defendant’s vehicle following the defendant’s arrest on a D.O.C. warrant is only admissible if there is a nexus between the community custody violation and the searched property.

On May 29, 2014, DOC Officer Thomas Grabski observed a person, later identified as Darian Livingston, who he recognized as having an outstanding DOC arrest warrant; Livingston was washing a vehicle alone at a car wash. Officer Grabski called for assistance, and two more officers arrived to assist him.

When the additional officers arrived, Livingston was talking with a person on a motorcycle. The person on the motorcycle drove away when the officers approached. Livingston was the only person near the vehicle. After confirming Livingston’s identity and the warrant, the officers arrested Livingston.

The officers then asked Livingston about the vehicle he had been washing. He said it belonged to his girlfriend who had gone to a nearby store, but he later admitted that his girlfriend was in Seattle and could not pick up the vehicle.

Livingston also admitted that he regularly drove the vehicle and that he had placed the key on the motorcycle when he first saw the officers. At the time of his arrest, Livingston was on active DOC probation. The DOC warrant issued in his name said there was “reasonable cause to believe Mr. Livingston] violated a condition of community custody.

DOC Officers Grabski and Joshua Boyd conducted a “compliance search” of the vehicle. When they conducted the search of the vehicle, the officers did not have any information about the nature of the violation that triggered the issuance of the DOC warrant.

Inside the vehicle, the officers found mail and other documents with Livingston’s name on them, a single pill, and a prescription bottle containing eight pills. In the vehicle’s trunk, the officers found a black backpack containing scented oils, a loaded .40 caliber handgun, a box of ammunition, and more mail addressed to Livingston. During booking, Livingston revealed that he was also carrying a baggie of cocaine on his person.

The State charged Livingston with first degree unlawful possession of a firearm (count I), unlawful possession of a controlled substance with intent to deliver (cocaine) (count II), bail jumping (count III), unlawful possession of a controlled substance (oxycodone) (count IV), and unlawful possession of a controlled substance (hydrocodone/dihydrocodeinone) (count V). Before trial, Livingston moved to suppress the evidence discovered during the vehicle search. The judge denied Livingston’s motion. He appealed.

Livingston argued that the trial court erred in deciding that the vehicle search was lawful under RCW 9.94A.631(1) because the officers had a reasonable belief that he had violated a community custody condition or sentencing requirement. Instead, he asked the Court of Appeals to follow State v. Jardinez and hold that to justify such a search, the property searched must relate to the violation that the community custody officer (CCO) believed had occurred.

First, the Court of Appeals reasoned that both article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution prohibit warrantless searches unless an exception exists. Washington law recognizes, however, that probationers and parolees have a diminished right of privacy that permits warrantless searches based on reasonable cause to believe that a violation of probation has occurred. This reduced expectation of privacy for parolees is recognized in RCW 9.94A.631(1), which states,

If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a [CCO] may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Second, the Court reasoned that pursuant to State v. Jardinez, there must be a nexus between the violation and the searched property. In Jardinez, the defendant’s parole officer searched his iPhone for no reason and found evidence linking Mr. Jardinez to criminal behavior. He was charged and convicted. On his appeal, the Court of Appeals examined the following official comment from the Sentencing Guidelines Commission (Commission) on RCW 9.94A.631(1):

“The Commission intends that [CCOs] exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the [CCO] upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the [CCO] believes to have occurred.”

Noting that Washington courts “have repeatedly relied on the Commission’s comments as indicia of the legislature’s intent,” Division Three concluded that the italicized portion of this comment “demands a nexus between the searched property and the alleged crime.” Following Jardinez, the Court of Appeals held that the trial court erred when it failed to consider whether there was a nexus between the violation and the searched property.

With that, the Court affirmed Mr. Livingston’s bail jumping conviction, count III, and his unlawful possession of a controlled substance conviction charged as count II. However, the court reversed the order denying Livingston’s motion to suppress the evidence discovered in the vehicle search and remanded Livingston’s case back to the trial court for further proceedings consistent with this opinion.

My opinion? Good decision. I’ve discussed Jardinez in another post, and found that opinion compelling as well. Excellent use of prior precedents and stare decisis.

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.

Strict Liability Offenses

Bellingham Defense Attorney, Blood Test, DUI, felony, Legislation, Skagit County Criminal Defense, Strict Liability, Strict Liability Offenses, Vehicular Assault, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Burch, Division II of the WA Court of Appeals held that in order to convict a defendant of vehicular homicide or vehicular assault, the State need not prove that a driver acted with ordinary negligence in the operation of a motor vehicle if it merely proves that the driver was under the influence of alcohol or drugs while driving that vehicle.

In December 2014, Burch was driving across an icy bridge when her truck spun out, slid off the road, and hit two men who were investigating the scene of an earlier accident. One of the men died and the other received serious injuries, including multiple broken bones and a severe ear laceration. Burch was uncooperative with law enforcement officers who responded to the scene. During their contact with Burch, the officers noticed that she smelled strongly of intoxicants.

They restrained Burch and brought her to a hospital to draw blood to test for intoxicants. Testing of that sample showed a blood alcohol concentration of .09, indicating a concentration between .11 and .14 two hours after the accident. The State charged Burch with vehicular homicide and vehicular assault, alleging that she drove or operated a motor vehicle while under the influence of intoxicating liquor or any drug or any combination of the two, in a reckless manner, and with disregard for the safety of others.

The jury found Burch guilty of both vehicular homicide and vehicular assault. In special verdicts, the jury found that Burch had driven while under the influence of intoxicating liquor or drugs, but had not driven recklessly. However, the jury was unable to agree as to whether she had driven with disregard for the safety of others. Burch appealed her convictions.

The Court of Appeals addressed the sole issue of whether the crimes of vehicular homicide and vehicular assault committed while under the influence of alcohol or drugs require the State to prove ordinary negligence in addition to the fact that the defendant was under the influence of alcohol or drugs.

Here, the Court of Appeals disagreed with Burch’s arguments that ordinary negligence is an element of vehicular homicide by driving under the influence of alcohol or drugs.

The Court also reasoned, “Offenses that criminalize a broad range of apparently innocent behavior are less likely to be strict liability offenses.  However, vehicular homicide committed by a driver under the influence encompasses little, if any, seemingly innocent conduct:

“Driving under the influence of alcohol or drugs is itself a serious criminal offense. RCW 46.61.502(1). Therefore, operating a motor vehicle under the influence is rarely, if ever, innocent behavior. Because vehicular homicide while under the influence of intoxicating liquor or drugs requires the State to prove the facts of both impairment and operation of a motor vehicle, the crime necessarily encompasses primarily or solely criminal behavior.”

For those who don’t know, a “strict liability offense” strict liability exists when a defendant is in legal jeopardy by virtue of an wrongful act, without any accompanying intent or mental state.  In criminal law, possession crimes and statutory rape are both examples of strict liability offences.

With that, the Court of Appeals held that the legislature intended to impose strict liability for vehicular homicide while under the influence of alcohol or drugs: “These considerations, along with the analysis of relevant statutory language above, lead to a single conclusion: the trial court did not err by instructing the jury that it could convict Burch without finding ordinary negligence or any other culpable mental state.”

The Court also held that the legislature intended vehicular assault by driving under the influence to be a strict liability offense, and that the trial court did not err by instructing the jury that it could convict without finding that Burch acted with ordinary negligence.

My opinion? Vehicular Homicide and Vehicular Assault are particularly difficult to mount a legal defense against given the “strict liability” facets of the law. The prosecution does not need to prove intent as long as the offender had drugs or alcohol in their system at the time of the offense. Period.

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

Bounty Hunters & Bondsmen

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In Applegate v. Lucky Bail Bonds, the WA Court of Appeals held a bail bondsman may forcibly enter another party’s land and/or house if he has reasonably believes the fugitive is there.

The appeal arises from a civil case brought by appellant Ron Applegate against respondent Lucky Bail Bonds Inc. and its agents. Lucky posted bail for Applegate’s daughter, Elizabeth, on her shoplifting charges. Elizabeth failed to appear for court dates. Lucky’s agents went to Applegate’s rural property at night in search of Elizabeth.

They found her in Applegate’s residence, but only after getting into a shoving match with Applegate and allegedly entering his  residence without permission. During the struggle, bail bonds agents broke several of Applegate’s ribs. He filed suit alleging assault, trespass, and other causes of action.

Applegate’s civil cause of action went to a jury trial in superior court. The jury rendered a verdict in favor of Lucky Bail Bonds.

On appeal, Applegate argued that under the Restatement of Torts (Second), bondsmen do not have a privilege to enter the private dwelling of a third party, and that the court’s admission of certain jury instructions was error.

The court reviewed RCW 18.185, which pertains to “Bail Bond Agents.” The statute defines a bail bond recovery agent as “a person who is under contract with a bail bond agent to receive compensation. . . for locating, apprehending, and surrendering a fugitive criminal defendant for whom a bail bond has been posted.” The statute requires recovery agents to be trained, tested, and licensed.

The court also reviewed RCW 18.185.270(1), which states that bail bond recovery agent on a recapture mission must carry a copy of the contract pertaining to the individual fugitive and, if requested, must present the copy to “the fugitive criminal defendant, the owner or manager of the property in which the agent entered in order to locate or apprehend the fugitive, other residents, if any, of the residence in which the agent entered in order to locate or apprehend the fugitive, and to the local law enforcement agency or officer.”

Applegate argued that the statute does not specifically authorize a bondsman’s encounters with third parties on their property and in their dwellings, and that the trial court’s jury instructions submitted at trial misstated the law and endorsed the actions of “rogue bounty hunters.”

Contrary to his argument, the Court of Appeals ruled that the jury instructions did not allow the jury to condone lawless behavior by rogue bounty hunters. If the jurors had believed the agents unreasonably attacked Applegate or broke into his home without reason to believe Elizabeth was there, the instructions required them to find that the agents exceeded the privilege and were acting unlawfully.” With that the Court of Appeals concluded the jury instructions did not misstate the law.

Finally, the Court ruled that the jury instructions for criminal trespass under RCW 4.24.630 were lawful and not erroneous. it reasoned that under the criminal trespass statute, the plaintiff must prove wrongful injury to property. An injury that is wrongful can be committed only by a person who “lacks authorization” so to act. Here, the bail bondsmen had a privilege to enter Applegate’s property. Therefore, they did not “lack authorization” under the statute.

My opinion? Getting bailed out of jail is a luxury, however, it carries obligations that many defendants should be aware of. Worst-case scenario, bail bond companies can deploy bounty hunters to seek defendants who abscond their responsibilities. Period. Therefore, defendants should expect a knock on their front doors – and the front doors of their loved ones – if bounty hunters get involved.

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

Pre-Arrest Silence & Business Records Exceptions to Hearsay Rule

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

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

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

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

Protective Sweeps of Homes

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In State v. Chambers, the WA Court of Appeals decided (1) the police’s “protective sweep” of the defendant’s home was improper because the defendant was arrested outside his home and the officers did not have specific facts that other armed individuals might be inside the defendant’s home, and (2) the defendant’s 3.5 Motion to Suppress statements made to police was rightfully denied because police scrupulously honored the defendant’s Fifth Amendment invocation of his right to remain silent.

In this case, defendant Lovett Chambers was drinking at the Feedback Lounge, a neighborhood bar in West Seattle that he frequented. Chambers was a convicted felon of African-American descent who moved to Seattle in 1989, worked in the construction industry, obtained degrees in computer science and started an IT business. In 1992, he got married and later purchased a house in West Seattle with his wife. A few years later, Chambers asked his wife to buy him a Colt .45 caliber semiautomatic handgun. She did so, apparently unaware that he was a convicted felon.

On the night of the incident, Mr. Chambers had numerous drinks at the Feedback Lounge. He carried and concealed his .45 pistol.   At some point, two Caucasian men entered the bar and began drinking. The gentlemen did not know Mr. Chambers. Later, all of the gentlemen departed the bar simultaneously and walked to their respective vehicles which were parked nearby each other in the parking lot.

For reasons unknown, words were exchanged between Chambers and the two gentlemen, who apparently uttered racial epitaphs to each other, Mr. Chambers, or both. One of the gentleman – Michael Travis Hood – pulled a shovel from his vehicle; apparently to defend himself from Mr. Chambers. However, Chambers shot Mr. Hood three times with his .45 pistol. Chambers walked away, got into his car and drove home in his BMW.

Mr. Hood died from lethal gunshot wounds to his back.

Seattle police arrested Chambers at his home at 10:49 p.m. Officer Belgarde read Chambers his Miranda rights at 10:51 p.m. Chambers smelled of alcohol. He was “swaying,” had trouble balancing, slurred his words, and was argumentative. Officer Galbraith drove Chambers to the precinct. Officers obtained a warrant to search Chambers’ home and seized a loaded .45 caliber handgun, a spare magazine, and the BMW keys. The police impounded the BMW. Later, officers interrogated Chambers and obtained numerous incriminating statements regarding the shooting.

The State charged Chambers with murder in the second degree of Hood while armed with a deadly weapon. Chambers asserted a claim of self-defense. Before trial, Chambers filed a CrR 3.6 motion to suppress the evidence seized from his house and the statements he made. The court denied the motion to suppress the evidence seized from the house. The court concluded the police “were authorized to enter the house to conduct a protective sweep to ensure their safety.” The court also denied the motion to suppress Chambers’ statements to police and reasoned his “right to remain silent was scrupulously honored” under Michigan v. Mosley.

The jury found Chambers guilty of the lesser-included offense of manslaughter in the first degree. By special verdict, the jury found Chambers was armed with a firearm at the time he committed the crime. The court imposed the low-end standard range sentence of 78 months plus the mandatory consecutive 60-month firearm enhancement. Chambers appealed.

  1. Evidence Seized from the House Was Obtained Through a Unlawfully Conducted “Protective Sweep,” However, The Trial Court’s Decision to Deny Chambers’ Suppression Motion Was Harmless Error.

Chambers contends the court erred in denying his motion to suppress the evidence the police seized from his house: the Colt .45, a magazine clip with .45 caliber bullets, and the keys to the BMW.

The Court of Appeals reasoned that the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution prohibit a warrantless search and seizure unless the State demonstrates that one of the narrow exceptions to the warrant requirement applies. One recognized exception to the warrant requirement is a “protective sweep” of the home. The court further reasoned that under Maryland v. Buie the U.S. Supreme Court describes a protective sweep as a limited cursory search incident to arrest and conducted to protect the safety of police officers or others.

The Court of Appeals decided the trial court erred in concluding the police had the authority to conduct a protective sweep of Chambers’ house. First, a warrantless search of “spaces immediately adjoining the place of arrest” without probable cause or reasonable suspicion does not apply when the police arrest an individual outside his home.

Here, the undisputed facts do not support the warrantless entry and protective sweep of the kitchen under Buie and the court erred in denying the motion to suppress:

“The record does not support the conclusion that there were “articulable facts” that the kitchen harbored “an individual posing a danger.” The police had information that only Chambers shot Hood and was alone when he drove away. The findings establish the only individual in the house when police arrested Chambers was his spouse. The front door was open after the arrest and the police could see Sara was sitting on the living room couch watching television and remained in the living room.”

However, the Court of Appeals also ruled that the verdict would have been the same absent the trial court’s error. Chambers testified he acted in self-defense when he shot Hood with the Colt .45. Chambers admitted that he parked his BMW in front of the Beveridge Place Pub on January 21, that he kept a .45 caliber gun under the passenger seat of the BMW, and that he used the Colt .45 to shoot Hood near Morgan Junction Park. For these reasons, the trial court’s decision to deny Chamber’s motion to suppress was harmless error.

2. Chamber’s Incriminating Statements Are Admissible.

On appeal, Mr. Chambers asserts the detectives did not “scrupulously honor” his Fifth Amendment right to remain silent. The court reasoned that the Fifth Amendment provides, in pertinent part, “No person shall be . .. compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, the Supreme Court adopted “procedural safeguards” to protect the privilege and held that before questioning an individual in custody, the police must clearly inform the suspect of the following:

That he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Here, the Court of Appeals decided that because the circumstances leading up to the police’s interview with Chambers show the police scrupulously honored Chambers’ right to cut off questioning, the court did not err in denying the motion to suppress the statements Chambers made.

The Court of Appeals reasoned that the record shows the police advised Chambers of his Miranda rights at 10:51 p.m. when he was arrested on January 21. Chambers stated he understood his rights and unequivocally said he did not want to talk to the police. The record establishes the police did not “ask the defendant any questions or persist in repeated efforts to wear him down or change his mind after he invoked his rights.” After he invoked his right to remain silent at 10:51 p.m. on January 21, the police did not question Chambers while at police headquarters. And while driving to Harborview to obtain a blood draw at 3:07 a.m. on January 22, the detectives did not ask Chambers any questions.

Nonetheless, on the way to Harborview, Chambers said he did not want to talk about what happened. While at Harborview, Chambers seemed to have “sobered up.” When they left Harborview approximately 45 minutes later, Detective Steiger advised Chambers of his Miranda rights again. Chambers stated he understood his rights and did not invoke the right to remain silent.

With that, the Court of Appeals concluded the undisputed facts support the conclusion that the right to cut off questioning was scrupulously honored.

The Court affirmed the jury verdict.

My opinion? The police should have advised Mr. Chambers of his Ferrier warnings, a topic which I have blogged many times. Ferrier warnings must be given if police officers seek to enter the home to conduct a warrantless search for evidence of a crime or contraband. Still, even if Ferrier warnings were given and Mr. Chambers denied the police entry into his home, his incriminating statements to police ultimately assigned harmless error to the unlawful search.

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

State v. Ortuno-Perez: “Other Suspect” Evidence

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In State v. Ortuno-Perez, the WA Court of Appeals held that a murder defendant was wrongfully prohibited from introducing evidence that another person, who was armed at the murder scene, actually committed the murder.

In the early morning hours of October 12, 2013, Jesus Castro was shot in the head while standing outside of a house in Renton. He died several days later.

The single shot was fired at close range from a .22 caliber firearm. At the time the shot was fired, anywhere between 5 to 12 people were standing in close proximity to Castro. In that group were 2 individuals particularly pertinent here, the defendant Santiago Ortuno-Perez and Austin Agnish—each of whom was armed with a handgun at the time.

On the same day that Castro was shot, Ortuno-Perez was identified as a suspect and subsequently arrested outside of a house in Kent. In the days that followed, Ortuno-Perez was identified as the shooter by several witnesses who were present at the scene, including Agnish. Ortuno-Perez was subsequently charged with one count of murder in the first degree, committed while armed with a firearm.

Crucial to his defense at trial, Ortuno-Perez sought to introduce evidence that another person, not him, killed Castro. In particular, his counsel sought to identify Austin Agnish as the shooter, to cross-examine the State’s witnesses for potential bias in their testimony, and to present additional evidence indicating that a person other than Ortuno-Perez was the shooter.

However, the trial court denied Ortuno-Perez’s request because Ortuno-Perez had not demonstrated that Agnish had taken steps to commit the crime.

Four days later, Ortuno-Perez’s counsel filed a detailed offer of proof regarding the “other suspect” evidence that the defense would have introduced but for the trial court’s adverse ruling. Again, the trial court excluded the “other suspect” defense.

On the 10th day of testimony, Ortuno-Perez moved for a mistrial, arguing that his right to present a defense had been denied by the trial court’s “other suspect” rulings. The judge denied the motion for mistrial.

The jury convicted Ortuno-Perez of murder in the second degree, committed while armed with a firearm. He was sentenced to 280 months of confinement. Ortuno-Perez appealed.

Ultimately, the WA Court of Appeals reversed  Ortuno-Perez’s conviction and ordered a new trial.

“OTHER SUSPECT” EVIDENCE.

The court reasoned that Washington’s “other suspect” evidence rule—applicable to proffered evidence that a specific person other than the defendant committed the charged crime—has developed from a broad common law rule to a specific and focused application of well established principles of materiality and probative value. Furthermore, the court reasoned that State v. Franklin holds that such evidence should be admitted if there is an adequate nexus between the alleged other suspect and the crime. Thus, the threshold analysis for “other suspect” evidence involves a straightforward, but focused, relevance inquiry, reviewing the evidence’s materiality and probative value for whether the evidence has a logical connection to the crime.

THE SIXTH AMENDMENT.

The Court further reasoned that the Sixth Amendment of the United States Constitution and article I, section 22 of the Washington Constitution guarantee a criminal defendant a meaningful opportunity to present a defense. This right, however, is not absolute. It may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, including the exclusion of evidence considered irrelevant or otherwise inadmissible. As with all evidence, the proponent bears the burden of establishing the admissibility of “other suspect” evidence.

Because the premise underlying the introduction of “other suspect” evidence is to show that someone other than the defendant committed the charged crime, the standard for admission is whether the proffered evidence tends to indicate a reasonable doubt as to the defendant’s guilt. Evidence is relevant when it is both material—the fact to be proved is of consequence in the context of the other facts and the applicable substantive law — and probative — the evidence has a tendency to prove or disprove a fact.

SUPPRESSING “OTHER SUSPECT” EVIDENCE VIOLATED ORTUNO-PEREZ’S RIGHTS UNDER THE SIXTH AMENDMENT.

Here, the Court of Appeals agreed that the “other suspect” evidence that Ortuno-Perez proffered actually supported a reasonable doubt as to his guilt. Prior to trial, defense counsel sought permission to present evidence to the jury that Agnish, not Ortuno-Perez, killed Castro. In his briefing, Ortuno-Perez’s counsel indicated that it planned to present evidence that Agnish (1) was using prescription drugs at the time that Castro was shot, potentially altering his perception of the shooting and his memory thereof, (2) was armed with a handgun and in close proximity to Castro at the time of the shooting, (3) lied about having access to guns other than the one he admitted carrying at the time of the shooting, and (4) was a member of a gang and had expressed a belief that Castro belonged to a rival gang.

However, the Court of Appeals reasoned that the trial court abused its discretion by improperly excluding the proffered evidence. It said the evidence proffered by Ortuno-Perez relating to Agnish’s potential culpability was of a type that tended to logically connect Agnish to Castro’s murder:

“If credited by the jury, it would establish Agnish’s motive (a gang clash), his opportunity (he was present at the murder scene and in close proximity to Castro at the instant of the shooting), and his means (he was armed with a handgun). Thus, the evidence proffered was plainly relevant to the question of the identity of Castro’s murderer and was of a type that, if credited by the jury, would support a reasonable doubt as to Ortuno-Perez’s guilt.”

The Court of Appeals said that as a result of the trial court’s erroneous rulings , Ortuno-Perez was unfairly prejudiced in two major respects: (1) his ability to confront the witnesses against him was compromised by the rulings preventing him from exploring the potential biases of witnesses who may have been covering for Agnish out of either affinity or fear; and (2) his ability to argue in closing argument that logical inferences from the evidence actually admitted during trial supported a reasonable doubt as to his guilt was compromised by rulings precluding him from suggesting to the jury that anyone other than Ortuno-Perez himself had shot Castro.

The trial court’s erroneous rulings were not harmless. The “other suspect” evidence which the trial judge excluded could have caused a reasonable juror to doubt whether Ortuno-Perez was guilty as charged. Consequently, the Court of Appeals reversed the conviction and remanded for a new trial.

My opinion? Good decision. Under the Sixth Amendment, allowing attorneys to argue inferences from the evidence is a rudimentary aspect of this right.  Defense Counsel must be afforded the utmost freedom in the argument of the case and some latitude in the discussion of their causes before the jury.

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.

“Common Authority” Vehicle Searches

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In State v. Vanhollebeke, the WA Court of Appeals Division III decided a vehicle owner’s consent to search overrode the driver’s express objections.

On the night of November 10, 2014, Sergeant Garza pulled the truck over that was facing the wrong way on a one-way street. Sergeant Garza got out of his patrol car and approached the truck. The defendant Mr. Vanhollebeke got out of the truck and started walking toward Sergeant Garza. Sergeant Garza ordered Mr. Vanhollebeke to get back in the truck. Mr. Vanhollebeke then said he had locked himself out of the truck. This unusual behavior made Sergeant Garza suspicious.

Dispatch advised that Mr. Vanhollebeke’s license was suspended. Dispatch also advised that Mr. Vanhollebeke was not the registered owner of the truck, and that the truck belonged to a man named Bill Casteel. Sergeant Garza’s plan at this point was to cite Mr. Vanhollebeke for driving with a suspended license and then release him.

However, another police officer noticed a glass pipe with a white crystal substance on it sitting in plain view near the dashboard, which he believed was drug paraphernalia. Also, the truck’s steering column was “punched,” which indicated the truck was stolen. The officers did not release Mr. Vanhollebeke and kept him in their custody.

The officers asked for permission to search the truck. Mr. Vanhollebeke refused. Sergeant Garza contacted Mr. Casteel, the actual owner of the truck, at Casteel’s home. Mr. Casteel told Deputy Barnes that Mr. Vanhollebeke had permission to use the truck. Casteel also gave police permission to search his truck and gave Deputy Barnes a key to it.

Deputy Barnes returned directly to the scene. He used the key to open the truck and began to search it. He looked under the driver’s seat and saw a revolver. The glass pipe tested positive for methamphetamine. The officers confirmed through dispatch that Mr. Vanhollebeke had a prior felony conviction.

The State charged Mr. Vanhollebeke with first degree unlawful possession of a firearm. Mr. Vanhollebeke argued a CrR 3.6 motion to suppress the physical evidence on the grounds that he had refused to give the officers consent to search the truck and also that the stop’s length and scope were unreasonable. However, the trial court admitted the evidence and denied Mr. Vanhollebeke’s motion to suppress. The jury convicted Mr. Vanhollebeke.

Vanhollebeke appealed on the issue of whether Mr. Casteel’s consent overrode Mr. Vanhollebeke’s express objection to search.

The Court of Appeals upheld the search. It reasoned that the Fourth Amendment to the United States Constitution guarantees people the right to be free from unreasonable searches and seizures. Warrantless searches are generally illegal unless they fall within one of the exceptions to the warrant requirement. However, one exception is consent to search by a person with authority over the place or thing to be searched. This exception includes consent given by a third person, other than the defendant.

The court further reasoned that to grant valid consent, the third party must have common authority over the place or thing to be searched. The court explained that common authority does not mean that the third party has a mere property interest in the place or thing being searched. Rather, to establish lawful consent by virtue of common authority, (1) a consenting party must be able to permit the search in his own right, and (2) it must be reasonable to find that the defendant has assumed the risk that a co-occupant might permit a search.

The court decided Mr. Vanhollebeke’s right to use the truck was dependent on the owner’s unrevoked permission:

“Here, Mr. Vanhollebeke had the actual right to exclude all others from the truck except for Mr. Casteel. For this reason, Mr. Vanhollebeke did not have a reasonable expectation of privacy if Mr. Casteel wanted to search his own truck or allow another person to do so.”

With that, the Court concluded Mr. Casteel’s consent to search his truck overrode Mr. Vanhollebeke’s objection. Therefore, the search did not violate Mr. Vanhollebeke’s reasonable expectation of privacy and the trial court did not err in denying Mr. Vanhollebeke’s CrR 3.6 motion to suppress. Vanhollebeke’s conviction was affirmed.

My opinion? Common authority search issues don’t happen very often in criminal defense. But when they do, it’s imperative to hire competent criminal defense who can leverage a strong motion to suppress the evidence and/or divide the “common parties” to the search. Perhaps the greatest lesson to learn is to simply avoid transporting illegal contraband in plain view within borrowed vehicles.

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.

Cell Phone Spying Is Unlawful

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In State v. Novick, The WA Court of Appeals Division II held the Defendant committed Computer Trespass in the First Degree when he installed “Mobile Spy” software on the victim’s cell phone and sent commands to activate the recording feature of the program in order to intentionally record the victim’s private communications.

David Novick and Lisa Maunu began dating in December 2013. Novick bought her a new mobile phone on March 11, 2014, and set it up for her. Unbeknownst to Maunu, Novick installed an application called Mobile Spy on Maunu’s new phone. The application allowed a person to log onto the Mobile Spy website and monitor the phone on which the application was installed.

From the Mobile Spy website, a user could access all the information stored on the monitored phone, including text messages, call logs, and e-mails. The versions of Mobile Spy software also permitted a user to send commands to the targetted phone from a “live control panel” on the website. One such command allowed a user to activate the phone’s microphone and recording features and record audio into a file that could then be downloaded from the website.

Eventually, Novick was caught after his girlfriend Maunu became suspicious. In short, Maunu became concerned because Novick expressed specific knowledge about Maunu’s health conditions, medications, doctors’ appointments, and private conversations.

With the assistance of Novick’s employer, it was discovered that Novick had downloaded over 500 audio files from Mobile Spy, searched for GPS (global positioning system) locations, and searched for particular telephone numbers.

The State charged Novick with eight counts of Computer Trespass in the First degree and eight counts of Recording Private Communications based on Novick’s use of Mobile Spy to record Maunu’s conversations. At trial, Novick was convicted on all charges.

Novick appealed on arguments that (1) the State failed to provide sufficient evidence that he intentionally recorded a private communication, and (2) entry of eight convictions of each crime violated his right against double jeopardy because the correct unit of prosecution covers the entire course of conduct.

Ultimately, the Court of Appeals disagree with Novick and affirmed his convictions.

  1. THE PROSECUTION SHOWED SUFFICIENT EVIDENCE OF COMPUTER TRESPASS FIRST DEGREE.
First, the Court explained that Computer Trespass in the First Degree occurs when a person intentionally gains access without authorization to a computer system or electronic database of another and the access is made with the intent to commit another crime. The Court further reasoned that here, the underlying crime was Recording Private Communications. A person commits the crime of recording private communications when he intercepts or records private communications transmitted by any device designed to record and/or transmit said communications.
Second, the Court reasoned that a forensic review of Novick’s computer activity revealed that he intentionally logged into Mobile Spy’s webiste and sent commands from the website to Maunu’s phone. Also, Novick’s computer records showed that he visited the live control panel on Mobile Spy’s website, downloaded audio files collected from Maunu’s phone and intentionally recorded Maunu’s private communications.
Accordingly, the Court held that the State presented sufficient evidence that Novick committed the crime of Recording Private Communications, and with that, committed Computer Trespass First Degree.
2. NO EVIDENCE OF DOUBLE JEOPARDY.
Next, the Court rejected arguments that Novick’s multiple convictions for Computer Trespass and Recording Private Communications violated the prohibition against Double Jeopardy because the correct unit of prosecution for each crime covers the entire course of Novick’s conduct.
The Court began by saying the Fifth Amendment to the United States Constitution provides that no “person be subject for the same offense to be twice put in jeopardy of life or limb.” Similarly, article I, section 9 of the Washington Constitution says, “No person shall . . . be twice put in jeopardy for the same offense.” In short, explained the Court, these double jeopardy provisions prohibit multiple convictions for the same offense.
Furthermore, when a defendant is convicted for violating one statute multiple times, the proper inquiry is, “What unit of prosecution has the Legislature intended as the punishable act under the specific criminal statute?” The Court explained that in order to determine whether there is a double jeopardy violation, the question becomes “what act or course of conduct has the Legislature defined as the punishable act?” Consequently, the scope of the criminal act as defined by the legislature is considered the unit of prosecution.
The Court explained that the first step is to analyze the statute in question. If the statute does not plainly define the unit of prosecution, we next examine the legislative history to discern legislative intent. Finally, a factual analysis is conducted to determine if, under the facts of the specific case, more than one unit of prosecution is present.
Ultimately, the Court was not persuaded by Novick’s “plain language of the statute” argument the if the legislature intended a single unit of prosecution based on a course of conduct, it could have said so plainly.
“What matters is not what the legislature did not say, but what it did say,” said the Court. “The plain language of the statutes support the conclusion that the units of prosecution . . . are each separate unauthorized access and each recording of a conversation without consent.” The Court further reasoned that while Novick’s actions were somewhat repetitious, they were not continuous:
“On at least eight separate and distinct times, Novick logged onto Mobile Spy’s website, accessed Maunu’s phone by issuing a command through the live control panel, and downloaded at least eight different recordings of conversations between Maunu and various other people. Each access was separated by time and reflected a separate intent to record a separate conversation.”
The Court concluded that the State proved that Novick intentionally recorded eight private communications. Additionally, Novick’s actions constituted multiple units of prosecution, and therefore, his multiple convictions did not violate double jeopardy principles. Thus, the Court affirmed Novick’s convictions.
My opinion? On the one hand, it’s shocking that citizens can be convicted of felonies by accessing mainstream computer software. Shouldn’t the software itself be outlawed instead? On the other hand, I see how parents can legally using the same software to track their minor children’s whereabouts, conversations and activities. That type of activity os not illegal.
This case presents a very good example of an atypical computer crime. We see that Computer Trespass First Degree is very similar to standard Burglary charges in that the State must prove the Defendant intends to commit a crime once they gain access to the victim’s computer system or electronic database. Recording Private Communications is a crime.  Therefore, if a defendant records private communications after gaining access, they can be found guilty of Computer Trespass in the First Degree. Simple.
Computer crime cases require experts and/or lay witnesses who are competent in discussing these matters. Speaking for the defense, it’s usually best to hire experts familiar with computer forensics to determine if/when the said access was unlawful and/or intentional. Again, the State must prove intent.

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.