Category Archives: Washington Court of Appeals

State v. Evans: A Knife is Not a Gun

Bellingham Defense Attorney, Due Process, Jury Trial, law enforcement, misdemeanor, Search and Seizure, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In City of Seattle v. Evans, the WA Supreme Court ruled that Article I, section 24 of the Washington Constitution and the Second Amendment to the United States Constitution’s protection of the right to bear “arms” does not extend to a paring knife.

Seattle Police Officer Michael Conners stopped a vehicle driven by Wayne Anthony Evans for speeding in the Central District of Seattle. As Conners approached Evans’s vehicle, he observed furtive movements from Evans and his passenger, and he smelled marijuana. Conners directed Evans to exit the vehicle and asked him whether he had any weapons. Evans responded that there was a knife in his pocket. Conners instructed Evans not to reach for the knife; Conners then reached into Evans’s front right pocket, retrieved a fixed-blade knife with a black handle, and placed Evans under arrest for possession of a fixed-blade knife.

The City of Seattle (City) charged Evans with the unlawful use of weapons in violation of SMC 12A.14.080, which reads, “It is unlawful for a person knowingly to . . . carry concealed or unconcealed on his or her person any dangerous knife, or carry concealed on his or her person any deadly weapon other than a firearm.”

The case proceeded to trial. The City’s Prosecutor introduced the knife into evidence and presented testimony from Officer Conners. Conners identified the knife that he recovered from Evans at trial and the State entered that knife into evidence. When asked, Officer Conners described the knife as having a “black handle with a metal colored blade” that was “about-about this long,” apparently gesturing with his hands. Officer Conners admitted that he was concerned that the knife had a fixed blade-that is, it had a blade that would not fold into the handle-and alternately described the blade as resembling a “kitchen knife” or a “paring knife.”

The jury returned a general verdict of guilty, and Evans’s conviction was affirmed by the King County Superior Court and the Court of Appeals.

The WA Supreme Court reviewed the case on the specific issue of whether Mr. Evans’ fixed-blade knife is a protected arm under the Washington or federal constitution. Apparently, ruled the court, a knife is NOT protected as an “Arm” under the Constitution(s):

 . . . we hold that not all knives are constitutionally protected arms and that Evans does not demonstrate that his paring knife is an “arm” as defined under our state or federal constitution. Therefore, Evans cannot establish that SMC 12A.14.080(B) is unconstitutional as applied to him and we reject his as-applied challenge.

The court reasoned that although it is true that some weapons may be used for culinary purposes, as it is also true that many culinary utensils may be used when necessary for self-defense; but it does not follow that all weapons are culinary utensils or that all culinary utensils are weapons:

Were we to adopt Evans’s analysis and hold that a kitchen knife was a protected arm because it could be used for self-defense, there would be no end to the extent of utensils arguably constitutionally protected as arms. If a kitchen knife is a protected arm, what about a rolling pin, which might be effectively wielded for protection or attack? Or a frying pan? Or a heavy candlestick? “Admittedly, any hard object can be used as a weapon, but it would be absurd to give every knife, pitchfork, rake, brick or other object conceivably employable for personal defense constitutional protection as ‘arms.’

With that, the WA Supreme Court affirmed the Court of Appeals and held that Evans’s paring knife was not an arm entitled to constitutional protection. Therefore, Evans cannot establish that SMC 12A.14.080 is unconstitutional as applied to him.

My opinion? I hate to say, but I somewhat agree. There’s a huge difference between a gun and a knife. The right to bear arms was made to protect guns, not knives. 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.

State v. Rich: Evidence of DUI Also Shows Reckless Driving

Bellingham Defense Attorney, DUI, Reckless Endangerment, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. Rich, the WA Supreme Court ruled that although proof of DUI alone does not necessarily establish proof of Reckless Endangerment, here, proof that a driver whose breath alcohol level was more than twice the legal limit and who showed awareness that she had done something wrong once stopped, and who sped past a police car in traffic with a young child in the front seat, was sufficient to allow a reasonable juror to conclude beyond a reasonable doubt that the driver created a substantial risk of death or injury to her passenger; which meets the definition of Reckless Endangerment.

A jury convicted defendant Andrea Rich of driving under the influence (DUI) and Reckless Endangerment. The evidence showed that Rich was speeding in traffic while highly intoxicated and with a young child in the front passenger seat. But the officer who arrested Rich followed her car because he believed that the car was stolen. Rich’s manner of driving posed no observable danger.

The WA Court of Appeals reversed the Reckless Endangerment conviction, holding that the evidence was insufficient to establish that Rich’s driving created an actual, substantial risk of death or serious physical injury to another person. It reasoned that proof of a DUI does not necessarily establish proof of Reckless Endangerment.

In response, the State Prosecutor appealed to the WA Supreme Court on the issue of whether there was sufficient to support Rich’s Reckless Endangerment conviction.

The WA Supreme Court agreed with the Court of Appeals that proof of DUI alone does not necessarily establish proof of Reckless Endangerment. The WA Supreme Court also reasoned, however, that the State proved more than just DUI in this case:

It also proved speeding, past a police car, in traffic, by a driver whose breath alcohol level was more than twice the legal limit, who showed awareness that she had done something wrong once stopped, and who had a young child in the front passenger seat. Construing the evidence in the light most favorable to the State, a reasonable juror could conclude beyond a reasonable doubt that Rich created a substantial risk of death or injury to her passenger, that Rich knew of the substantial risk, and that Rich disregarded that risk in gross deviation from the way a reasonable person would act in her situation.

With that, the WA Supreme Court reversed the Court of Appeals and affirmed the conviction.

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.

State v. Meza: Freezing Funds Without a Warrant Is Unlawful

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Freezing Bank Accounts, Probable Cause, Search and Seizure, Search Warrant, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

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In State v. Meza, the WA Court of Appeals Division II held that a trial court’s order to freeze the defendant’s bank account was not a search warrant, and therefore did not satisfy the warrant requirement for the seizure of funds.

In June 2014, John Armstrong spoke with the Lewis County sheriff’s office and alleged that Rafael Meza had swindled money from him. Deputy Justin Rogers investigated Armstrong’s allegations. Rogers contacted the Twin Star Credit Union and verified that Meza held an account that had received large wire transfers recently. Rogers also learned from Mansfield that Meza recently had informed him that he was planning to go to Mexico.

Rogers served Twin Star Credit Union with a valid search warrant for Meza’s account information. Meza’s bank statements showed a check and four wire transfers from Mansfield totaling $105,000, with the last transfer on June 18. They also showed a single wire transfer from Armstrong in the amount of $15,000 on April 11. Meza’s checking account showed that between October 2013 and June 2014, he withdrew approximately $89,000 in cash in 41 transactions involving between $3,000 and $5,000 each.

On June 27, 2014, the State charged Meza with one count of Theft in the First Degree. On the same day, the State presented an ex parte “Motion for an Order Freezing and Holding Funds” to the judge. The State asserted that the funds in Meza’s credit union accounts were “evidence in a felony offense.” The State’s motion was based on the probable cause affidavit filed with the information and asserted that there was “a high likelihood, based on the affidavit regarding probable cause, that Meza will remove said funds and leave the country.”

Importantly, the State did not request a search warrant for the credit union funds or reference CrR 2.3 in its motion.

Nevertheless, the trial court signed an order directing Twin Star Credit Union to “freeze and hold all accounts in the name of . . . Meza . . . as evidence in a criminal proceeding, until further order of this Court.” Also, neither the motion nor the order cited any legal authority for freezing Meza’s accounts.

In January 2015, Meza filed a motion to vacate the trial court’s order. Meza argued that there was no legal authority for the order. The trial court denied Meza’s motion to vacate the order, saying there was probable cause to believe that Meza’s account was related to the charged crime. The court concluded that it had the authority to freeze Meza’s funds under CrR 2.3. In addition, the trial court ruled that Meza’s account qualified as both evidence of a crime and the proceeds of a crime. Meza filed a motion for discretionary review. The WA Court of Appeals accepted the case.

The WA Court of Appeals reasoned that The Fourth Amendment to the United States Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Similarly, article I, section 7 of the Washington Constitution provides that “no person shall be disturbed in his private affairs, or his home invaded, without authority of law.” These provisions generally prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies.

Consequently, reasoned the court, a person’s banking records fall within the constitutional protection of private affairs. Although no Washington case has addressed whether funds in a bank account can be seized without a warrant it defies reason to extend constitutional protection to bank account records but not to the funds reflected in those records. The Court emphasized that the seizure of funds is as much a threat to security in a person’s effects and a disturbance of a person’s private affairs as the seizure of the records regarding those funds:

“Here, the State cites no statute, court rule, or other authority allowing the seizure of a defendant’s bank account in these circumstances. Therefore, the seizure was not authorized by law.”

Finally, the Court rejected the State’s argument that under State v. Garcia-Salgado the trial court’s order is the functional equivalent of a search warrant.

“We hold that the Garcia-Salgado holding is limited to cases where the trial court’s order is authorized by law. Allowing a court order to function as a warrant when there is no independent authority for a seizure would render CrR 2.3 meaningless. Limiting the scope of Garcia-Salgado preserves the integrity of CrR 2.3. We hold that Garcia-Salgado is inapplicable and that the trial court’s order cannot be treated as the functional equivalent of a warrant.”

Based on these decision the Court of Appeals held that the trial court erred in ordering the seizure of Meza’s credit union account.

My opinion? GOOD opinion. Very sensible and reasonable. It’s refreshing that the Court of Appeals followed the law and made the right decision.

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

Court Reverses Pot Conviction

Bellingham Defense Attorney, Constitutional Rights, Deferred Prosecution, Drug Offenses, I-502, Legislation, marijuana, misdemeanor, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

 

In State v. Rose, the WA Court of Appeals Division III decided to reverse Mr. Rose’s conviction for Possession of Marijuana because Washington’s general criminal prosecution saving statute does NOT permit a prosecution for less than 1 ounce of marijuana that was pending when Initiative 502 became effective.

On June 26, 2012, defendant Justin Rose was fishing on the Yakima River below the Roza Dam when he and his companions were approached by a Washington Fish and Wildlife agent interested in checking for their fishing licenses. The Fish and Wildlife agent noticed that Mr. Rose was smoking. Based on the agent’s training and experience, he believed Mr. Rose was smoking marijuana from a bong. When the agent told Mr. Rose what he had seen, Mr. Rose admitted he had been smoking marijuana and handed over the bong, which contained some marijuana, to the agent. Mr. Rose was over age 21 at the time. He was charged with one violation of RCW 69.50.4014 (possession of less than 40 grams of marijuana) and one violation of former RCW 69.50.412(1) (2002) (use of drug paraphernalia).

In October 2012, Mr. Rose entered into a deferred prosecution agreement with the State, staying the prosecution. For those who don’t know, a deferred prosecution is an agreement between someone who is charged with a crime and the State Attorney’s Office. This agreement will require that within a specified period of time, the person charged with a crime will complete all requirements in the agreement. The State agreed that if Mr. Rose complied with the conditions. identified in the agreement for one year, it would move to dismiss both charges. The conditions imposed on Mr. Rose included performing community service, paying a fee and costs, obtaining an alcohol and drug evaluation, and fully complying with any recommendation of alcohol or drug treatment or other services resulting from the evaluation.

Initiative 502 came into effect while Mr. Rose’s case was pending. The law unconditionally decriminalized possession of less than one ounce of marijuana by persons 21 and over, and did remove marijuana paraphernalia from the unlawful categories of paraphernalia.

Unfortunately, Mr. Rose  violated the conditions of his deferral agreement by failing to enter into an intensive outpatient treatment program. The district court revoked the agreement, proceeded to a bench trial, and found Mr. Rose guilty of both counts.

Before sentencing, Mr. Rose moved to dismiss the charges based on the decriminalization of his offenses by I-502. The district court denied Mr. Rose’s motion. It recognized that RCW 10.01.040 – which provides that offenders are prosecuted under the laws in effect at the time of their offenses – does not apply if intervening legislation conveys a contrary intent. It sentenced Mr. Rose to 180 days confinement. Mr. Rose appealed to the Superior Court, which upheld his convictions. In response, he successfully appealed his case to the WA Court of Appeals.

The WA Court of Appeals reversed Mr. Rose’s convictions. It acknowledged that  although the common law provides that pending cases be decided according to the law in effect at the time of the decision, the Washington legislature adopted a criminal prosecution saving statute, now codified at RCW 10.01.040, whose saving clause “presumptively ‘save[s]’ all offenses already committed and all penalties or forfeitures already incurred from the effects of amendment or repeal,” requiring that they be prosecuted under the law in effect at the time they were committed “unless,” as the statute provides, “a contrary intention is expressly declared in the amendatory or repealing act.”

Here, the WA Court of Appeals sought to reconcile these countervailing laws.

The Court reasoned that in this case – and unlike actual laws written legislatures – we are dealing with an initiative to the legislature:

“While standard rules of statutory construction apply, our concern is with the intent of the voters. The issue is whether an intent by the voters to apply its decriminalization provisions to stop pending prosecutions is fairly conveyed by the initiative.”

The Court further reasoned that we look at the language of 1-502 from the perspective of the average informed lay voter rather than from the perspective of the legislature. It acknowledged that average lay voters presented with an initiative that they are told will stop treating adult marijuana use as a crime are more likely to make the assumption that prosecution will be stopped on the effective date. Consequently, and in these rare cases where legislation includes additional language that conveys disapproval or concern about continued prosecution, the Court felt compelled to respect the intent of the voters.

My opinion? Good decision. Washington General Criminal Prosecution Saving Statute should not allow prosecutors to enforce archaic laws which were ultimately killed by the will of the voters. Period. Kudos to Division III.

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.

Cruel & Unusual Punishment?

Bellingham Defense Attorney, Constitutional Rights, Cruel & Unusual Punishment, Drug Offenses, Due Process, Eighth Amendment, felony, Methamphetamine, Search and Seizure, Strict Liability, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Schmeling, the WA Court of Appeals Division II decided that Felony Possession of a Controlled Substance is constitutional as applied under the Eighth Amendment and under the Fourteenth Amendment’s due process clause even though the statute makes possession of very small amounts of a controlled substance a felony without knowledge of possession or intent to possess.

Here, as part of a theft investigation, law enforcement officers searched Richard Schmeling’s car and uncovered two small baggies that contained white residue. The residue was tested and turned out to be methamphetamine. The State charged Schmeling with Felony Possession of a Controlled Substance. Schmeling’s first trial ended in a mistrial because of a hung jury. On retrial, the jury convicted Schmeling. He appealed his conviction on the argument that RCW 69.50.4013 violates the Eighth Amendment prohibition of cruel and unusual punishment and the Fourteenth Amendment’s guarantee of due process because it makes possession of drug residue a felony without requiring any culpable mental state.

The Court of appeals reasoned that Eighth Amendment to the United States Constitution prohibits cruel and unusual punishment. The basic concept of the Eighth Amendment is that punishment for a crime must be proportionate to the offense. There are two types of Eighth Amendment analysis: (1) determining whether a sentence is disproportionate to the particular crime, and (2) using categorical rules to define constitutional standards for certain classes of crimes or offenders.

  1. WAS SCHMELING’S SENTENCE PROPORTIONATE TO HIS CRIME?

The Court gave historical background showing that many Eighth Amendment cases address whether a particular punishment is disproportionate to the crime. The Eighth Amendment does not require strict proportionality between crime and sentence and forbids only extreme sentences that are ‘grossly disproportionate’ to the crime. Most courts have shown a reluctance to review legislatively mandated sentences. As a result, successful challenges to the proportionality of sentences are exceedingly rare.

Here, Schmeling argues that classifying possession of small amounts of a controlled substance as a felony without a knowledge or intent constitutes cruel and unusual punishment. However, the Court of Appeals reasoned that the WA Supreme Court rejected a similar argument in State v. Smith. In that case, Smith was convicted of possession of more than 40 grams of marijuana, which was punished as a felony. He argued that the seriousness of the offense did not warrant classifying his crime as a felony. The court rejected Smith’s argument, noting that it was unaware of any authority supporting the proposition that classification alone could constitute cruel and unusual punishment. The court also held that Smith’s actual sentence was not grossly disproportionate to his offense. Consequently, under the traditional proportionality analysis, Smith controls. Therefore, classification of a crime as a felony despite the absence of a knowledge or intent requirement does not result in grossly disproportionate punishment.

2. WAS SCHMELING’S SENTENCE UNCONSTITUTIONAL GIVEN THE NATURE OF THE OFFENSE OR THE CHARACTERISTICS OF THE OFFENDER?

This analysis involves two steps. First, the reviewing court considers “objective indicia of society’s standards (categorical approach), as expressed in legislative enactments and state practice” to determine whether there is a national consensus against the sentencing practice at issue. Second, the reviewing court considers precedent and its own understanding and interpretation of the Eighth Amendment to determine in the exercise of its own independent judgment whether the punishment is unconstitutional.

The Court acknowledged that Schmeling wanted them to apply a categorical approach. However, the Court of Appeals declined to apply the categorical approach to punishment of adult drug offenders like Schmeling. It held that under State v. Smith, RCW 69.50.4013 does not violate the Eighth Amendment even though it punishes the possession of small amounts of controlled substances as a felony without imposing a knowledge or intent element.

3. DID SCHMELING’S SENTENCE VIOLATE DUE PROCESS?

In short, the Court held that RCW 69.50.4013 does NOT violate due process even though it makes possession of drug residue a crime without requiring any culpable mental state.

The court reasoned that Strict Liability Crimes – crimes with no knowledge or intent  requirement – do not necessarily violate due process. “We do not go with Blackstone in saying that ‘a vicious will’ is necessary to constitute a crime, for conduct alone without regard to the intent of the doer is often sufficient. There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.”

The Court of Appeals further reasoned that WA’s Supreme Court repeatedly has stated that the legislature has the authority to create strict liability crimes that do not include a culpable mental state. Also, our Supreme Court twice has directly addressed in two other cases whether the elements of possession of a controlled substance under prior versions of RCW 69.50.4013 contains a knowledge or intent element. Those cases were State v. Bradshaw and State v. Cleppe. In both cases, the court held that the legislature deliberately omitted knowledge and intent as elements of the crime and that it would not imply the existence of those elements.

Here, Schmeling cites two cases from other jurisdictions holding that a strict liability offense violated due process. However, given our Supreme Court’s repeated approval of the legislature’s authority to adopt strict liability crimes, the Court found Schmelling’s arguments unpersuasive.

In sum, the Court of Appeals held that RCW 69.50.4013 does NOT violate due process even though it does not require the State to prove intent or knowledge to convict an offender of possession of a small amount of a controlled substance. It affirmed Schmeling’s conviction and sentence.

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

State v. Cherry: Consent & Self-Incrimination

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, Evidence, felony, law enforcement, Methamphetamine, Miranda, Search and Seizure, Self-Incrimination, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

In State v. Cherry, the WA Court of Appeals Division II decided that a police officer’s questions to the passengers of a vehicle – which were intended to determine whether one of the passengers could safely remove the defendant’s car from the scene – were routine booking questions and did not violate the defendant’s Fifth Amendment rights.

Defendant Mathew Cherry was arrested for driving with a suspended license. He was driving two passengers. When the police officer asked Cherry to confirm who was in the car, Cherry identified his two passengers. When asked whether either passenger could take the car, Cherry responded that neither had a license and that he did not know anyone who did. The officer told Cherry that his car would be impounded.

Cherry consented to a search of his car. A pipe containing methamphetamine residue was found. When Cherry was booked into jail, he resisted a strip search and apparently swallowed the contents of a small pouch after it was seen between his legs.

The State charged Cherry with Unlawful Possession of a Controlled Substance and Tampering With Evidence. Cherry filed a CrR 3.6 motion to suppress the evidence found in his car, arguing that the officers threatened to have his car impounded if he did not consent to its search and that his consent was coerced. The trial court also conducted a CrR 3.5 hearing in which Cherry challenged the admission of his statements to police. At trial, a jury found Cherry guilty as charged. He appealed.

Ultimately, the Court of Appeals upheld Cherry’s convictions. Here, the officer’s questions to Cherry’s passengers were not intended to and did not elicit incriminating information. Rather, the questions were intended to determine whether Cherry’s car could be safely removed from the scene.

Additionally, the court disagreed with Cherry’s arguments that officers were not permitted to ask for consent to search his car after he invoked his right to remain silent. Here, the officer informed Cherry of his Miranda rights before requesting Cherry’s consent to search the car. The court reasoned that the request for consent to search was not designed to elicit testimonial evidence and Cherry’s consent was not an incriminating statement. Therefore, law enforcement did not violate Cherry’s constitutional right to remain silent by requesting consent to search his car after Cherry had invoked that right.

Moreover, Cherry’s statements to police that he had consumed drugs earlier that day were admissible, and not made in response to any questioning likely to elicit an incriminating response. The court reasoned that even if Cherry’s statements were prompted by watching the police search his car, as Cherry now argues, they were not prompted by unlawful interrogation. There was no violation of Cherry’s right to remain silent. Therefore, his statements were properly admitted.

Finally, the court disagreed with Cherry’s arguments that his consent to search was not voluntary, and therefore, it violated the Fourth Amendment and the evidence found during the search is inadmissible. Here, under these facts, Cherry clearly consented.

For all of these reasons, the Court of Appeals affirm Cherry’s convictions.

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.

State v. Hampton: You Can’t Replace Your Attorney at 11th Hour.

Bellingham Defense Attorney, Constitutional Rights, felony, Jury Trial, Rape, Sex Crimes, Sixth Amendment, Speedy Trial & Continuances, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Things to Consider Before Firing Your Attorney

In State v. Hampton, the WA Supreme Court decided  It was not an abuse of discretion for a trial judge to deny a defendant’s request to delay trial to allow him to replace his public defender with a private attorney.

Mr. Hampton was charged with Rape in the Second Degree. On the eve of his trial, Hampton moved to replace his appointed counsel with a new private attorney on the condition that the trial be continued so his new counsel could prepare. The trial court denied the continuance, so Hampton proceeded with his previously appointed counsel. He was ultimately convicted of Rape in the Third Degree.

The Court of Appeals reversed his conviction, holding that the trial court’s decision violated Hampton’s constitutional right to his choice of counsel because it considered Hampton’s reasons for wanting a new attorney. The Court of Appeals relied on United States v. Gonzalez-Lopez, a United States Supreme Court opinion that held that when a defendant’s right to choice of counsel is erroneously denied, a defendant need not show prejudice in order to obtain relief.

Here, the WA Supreme Court overruled the WA Court of Appeals and upheld Mr. Hampton’s conviction. It reasoned that a trial court has wide latitude to grant or deny a motion to delay trial related to a defendant’s request to change counsel. In making such a decision, trial courts should consider the factual context for the motion, which can include among other factors-a defendant’s reasons for dissatisfaction with existing counsel.

In this case, reasoned the court, the trial court did not abuse its discretion when it denied Hampton’s request to delay trial to allow him to replace his counsel given that (1) he did not make his request until the day his trial was scheduled to start, (2) his trial had already been continued once, (3) the victim/witness opposed the continuance, and (4) he did not explain his dissatisfaction with appointed counsel.

The WA Supreme Court also stated that trial courts can consider all relevant information, including the 11 factors described in the most recent edition of the LaFave Criminal Procedure treatise:

(1) whether the request came at a point sufficiently in advance of trial to permit the trial court to readily adjust its calendar;

(2) the length of the continuance requested;

(3) whether the continuance would carry the trial date beyond the period specified in the state speedy trial act;

(4) whether the court had granted previous continuances at the defendant’s request;

( 5) whether the continuance would seriously inconvenience the witnesses;

(6) whether the continuance request was made promptly after the defendant first became aware of the grounds advanced for discharging his or her counsel;

(7) whether the defendant’s own negligence placed him or her in a situation where he or she needed a continuance to obtain new counsel;

(8) whether the defendant had some legitimate cause for dissatisfaction with counsel, even though it fell short of likely incompetent representation;

(9) whether there was a “rational basis” for believing that the defendant was seeking to change counsel “primarily for the purpose of delay”;

(10) whether the current counsel was prepared to go to trial; and

( 11) whether denial of the motion was likely to result in identifiable prejudice to the defendant’s case of a material or substantial nature.

Based on that, and under the circumstances, the WA Supreme Court concluded that the trial court in this case did not error by considering the defendant’s reasons for dissatisfaction with his appointed attorney in addition to the other circumstances, such as the lateness of the request, the previous continuance granted by the court, and the victim/witness’s opposition to further delay.

Consequently, the WA Supremes reversed the Court of Appeals and held that the trial court did not abuse its discretion when it considered – among other factors – the defendant’s reasons for his dissatisfaction with his appointed counsel.

My opinion? Trial judges are very, very suspicious and pessimistic when defendants try withdrawing/replacing their defense attorney at the 11th hour before trial. Judges know that Prosecutors work hard – and they do – to bring witnesses together and prepare for trial. Judges also know want to avoid any witness tampering and/or intimidation on the part of defendants who may have mistakenly believed they could strike a BBD (bigger, better deal) right before trial.

That line of thinking on the part of defendants is not always true, in fact, it’s rarely true. Believe me, once a competent Prosecutor prepares a trial, they’re rarely convinced of going anywhere but forward with their prosecution.

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.

State v. Thompson: Disruptive Defendants In Trial

Bellingham Defense Attorney, Constitutional Rights, Due Process, felony, Firearm, Jury Trial, Sixth Amendment, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Murder defendant to wear shock device | The Spokesman-Review

In State v. Thompson, the WA Court of Appeals Division II held that  a Defendant’s right to be present during trial is not violated if they are taken away after being verbally and/or physically disruptive and refuse to promise that such behavior will stop.

Here, late one evening, Thompson approached a group of high school students, two of whom were sitting in a car. Thompson pulled out a gun and ordered the students to surrender their possessions. Three of them handed over backpacks and other items, while the two girls in the car closed and locked the doors. After looking through the items, Thompson demanded the car. When one of the boys protested and tried to get the gun, Thompson shot him in the abdomen. The other boys wrestled Thompson to the ground and held him until the police arrived.

The State charged Thompson with four counts of Robbery in the First Degree while armed with a firearm and one count Assault First Degree while armed with a firearm, Unlawful Possession of a Firearm in the First Degree and Possession of a Stolen Firearm.

When Thompson’s trial began on January 28, 2014, he wore a leg restraint. Before testimony began, jail personnel asked for increased restraints due to a physical altercation at the jail. After a hearing on the matter, the trial court authorized the placement of a stun device under Thompson’s clothing.

Later that same day, Thompson pushed over the counsel table at which he was seated, yelled several profanities, and struggled with corrections officers before being subdued and removed from the courtroom. When he returned in handcuffs, shackles, and a belly chain, the trial court ruled that he would be taken to another courtroom where he could attend the trial over a video feed.

The trial court informed Thompson that he would have the right to be present in court if he assured the judge that his behavior would improve. Specifically, the judge said the following:

“And, of course, Mr. Thompson has the right to reclaim his ability to be present in court upon a real assurance that his conduct will improve and that he will not be verbally or physically disruptive.”

Before the trial recessed for the day, the trial court reminded Thompson that he could return to the courtroom the following day if he agreed to behave. Thompson was instructed to inform his attorney or corrections staff of his decision.

The next day, on February 4, trial resumed. Thompson had not decided whether he would behave in court. The judge said he would not further inquire into Thompson’s desire to return to the courtroom because Thompson knew the procedure by which he could return the day before and still refused to comply or reply. After the State rested, Thompson declined to testify, and the jury retired to deliberate at the end of the day.

On February 5, the jury found Thompson guilty as charged.

On appeal, Thompson raised the legal issue of whether the trial court denied his right to be present at trial by removing him from the courtroom for the final three days of trial without informing him daily that he could return if he conducted himself properly.

However, the Court of Appeals disagreed. The Court reasoned that a criminal defendant has a constitutional right to be present in the courtroom at all critical stages of the trial. Also, this right derives from the 6th Amendment’s constitutional right to confront adverse witnesses and the Washington rules of criminal procedure.

The Court also reasoned, however, that the right to be present is not absolute. A defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present in the courtroom. Once lost, this right can be reclaimed “as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.”

The Court of Appeals followed basic guidelines under State v. Chapple to assist trial courts in exercising their discretion in cases like this. First, the defendant must be warned that his conduct may lead to removal. Second, the defendant’s conduct must be severe enough to justify removal. Third, the trial court should employ the least severe alternative that will prevent the defendant from disrupting the trial. Fourth, the defendant must be allowed to reclaim his right to be present upon assurances that his or her conduct will improve. These guidelines, said the court, are intended to ensure that trial courts exercise their discretion in a manner that affords defendants a fair trial while maintaining the safety and decorum of the proceedings.

Here, the trial court clearly informed Thompson of both his right to return and the manner in which he could exercise that right. With that, the Court affirmed Thompson’s convictions.

My opinion? In my experience, trial judges are extremely sensitive to how defendants behave in court. Decorum MUST be maintained by witnesses, attorneys and defendants at all times. Any disruptions of proceedings are viewed disdainfully, as we see in 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.

State v. Mitchell: Bus Fare Officers

Bellingham Defense Attorney, Detention, felony, Firearm, law enforcement, Search and Seizure, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Sound Transit, King County Metro suspending fare enforcement to improve safety during novel coronavirus response | Mass Transit

In State v. Mitchell the WA Court of Appeals Division I decided that a fare enforcement officer (FEO) may detain a passenger for a period of time necessary to identify a bus rider and may also issue a notice of civil infraction when a passenger fails to pay the required fare or produce proof of payment when asked, if the infraction occurs in the officer’s presence. Finally, a “passenger” includes a person that the FEO observes stepping off the bus.

Here, Mitchell was convicted of Unlawful Possession of a Firearm in the First Degree. The firearms were discovered when a fare enforcement officer stopped him to check proof of fare payment after he exited a Metro bus. Mitchell argues he was unlawfully detained and the trial court erred by not suppressing evidence of the firearms.

The Court of Appeals reasoned that RCW 35.58.585(1) allows metropolitan municipal corporations to designate individuals to monitor fare payment. These persons have all the powers granted to enforcement officers under RCW 7.80.050 and 7.80.060. This means an FEO can issue a notice of civil infraction when the infraction occurs in the officer’s presence, request identification, and detain a person for a period of time reasonably necessary to identify the person. Also, under RCW 35.58.585(2)(b) the law specifically grants FEOs the additional authority for the following:

(i) Request proof of payment from passengers; (ii) Request personal identification from a passenger who does not produce proof of payment when requested; (iii) Issue a citation and (iv) Request that a passenger leave the bus or other mode of public transportation when the passenger has not produced proof of payment after being asked to do so by a person designated to monitor fare payment.

Here, the defendant challenged the legality of the stop. He argued that the word “passenger” includes only those persons physically present on a mode of public transportation. Under this theory, an FEO may request proof of payment from someone currently traveling on a bus, because that traveler’s freedom of movement is already restricted by his or her presence on a moving vehicle. However, once the person disembarks the bus, additional authority is needed to request proof of payment, because to do so an FEO must first stop the person.

Unfortunately for Mitchell, the WA Court of Appeals disagreed. They said that here, there is no question Mitchell was a passenger. The FEO witnessed Mitchell disembarking the bus. He asked Mitchell and the other departing passengers for their proof of payment as they stepped off the bus. By using the bus, as a passenger, Mitchell had already incurred the obligation to display proof of payment when asked. Under these facts, the FEO acted within the scope of his statutory authority by requesting proof of payment from Mitchell. Additional authority to detain was unnecessary.

Also, because Michell did not have ID on himself, the FEO had the authority to detain Mitchell for the time reasonably necessary to identify him. Accordingly, the FEO radioed for assistance and, within minutes, police arrived and confirmed Mitchell’s identity. At each step of this encounter, the FEO acted within the scope of his statutory authority.

The Court of Appeals upheld Mitchell’s conviction for Unlawful Possession of a Firearm First Degree.

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.

State v. Thierry: Prosecutor’s Improper Closing Argument Reverses Conviction.

Bellingham Defense Attorney, felony, Jury Trial, Prosecutorial Misconduct, Sex Crimes, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Ethics class ordered for tired attorney who made improper closing argument | The Law for Lawyers Today

In State v. Thierry, the WA Court of Appeals Division II decided that a Prosecutor’s statements during the closing argument of a child sex abuse case was an improper appeal to passion and prejudice.

The State charged Alfred James Thierry Jr. with four counts of Rape of a Child First Degree and two counts of Child Molestation First Degree, based on conduct against his son, JT.

At trial, the Prosecutor’s closing argument discussed direct versus circumstantial evidence. This explanation included the following:

“None of you were present when these acts occurred. No one testified for you that they watched any of these acts happen. That would be direct evidence of the acts themselves, but that is not required and, if it were, the State could never prosecute any of these types of cases.”

She made a similar argument shortly thereafter, in a discussion of the sufficiency of the State’s evidence:

“Did Thierry rape and molest his son? Yes, he did. The evidence tells you that he did. What’s the evidence? JT is the evidence, and he is all that is required for you to find him guilty of these crimes. If the law required more, if the law required anything, something, anything beyond the testimony of a child, the child’s words, JT’s words, those instructions would tell you that, and there is no instruction that says you need something else. And, again, if that was required, the State could rarely, if ever, prosecute these types of crimes because people don’t rape children in front of other people and often because children wait to tell.”

She again returned to this argument near the end of her initial closing remarks, in discussing the burden of proof:

“Now I want to talk just briefly about the standard of beyond a reasonable doubt. You don’t need to know all of the pieces. You don’t need to have all of the information or have all of the answers. If that were necessary, first of all, the standard would be beyond all doubt possible, but if that were necessary, once again, the State would not be able to prosecute any of these crimes or really any crime, actually, because how can you all as jurors who are selected from the community know nothing about any of the people involved, and certainly yourselves were not present for any act or crime that was committed, how can you know with 100 percent certainty?”

The prosecutor continued in this vein during rebuttal, returning to her public policy theme:

Defense counsel wants you to basically disregard everything that JT has said between what he told Sayfullah, between what he told Ms. Arnold-Harms, between when he told his primary care provider Ms. Lin and what he told Amber Bradford. ‘Just disregard all of that because he’s a child, because he was 8 when he said these things and because he was 9 when he was on the stand. Nothing he said is credible so just disregard it all.’ If that argument has any merit, then the State may as well just give up prosecuting these cases, and the law might as well say that “The word of a child is not enough.”

At that point Thierry’s defense attorney objected that the prosecutor was “fueling the passion and prejudice of the jury.” The court overruled the objection and permitted the prosecutor to continue.

The jury returned guilty verdicts on all counts.

Thierry appealed that several of the remarks the Prosecutor made in closing argument merit reversal. He also argued that the cumulative effect of the improper statements denied him a fair trial.

Ultimately, the Court of Appeals agreed with Thierry and decided that the Prosecutor’s arguments were improper and that it had a substantial likelihood of affecting the verdict.

The court reasoned that as a general matter, to prevail on a prosecutorial misconduct claim a defendant must show that the prosecutor’s conduct was both improper and prejudicial in the context of the record and all of the circumstances of the trial. To establish prejudice sufficient to require reversal, a defendant who timely objected to the challenged conduct in the trial court must show a substantial likelihood that the misconduct affected the jury verdict.

The Court further reasoned that it’s improper for prosecutors to use arguments calculated to inflame the passions or prejudices of the jury.  Arguments that compel the jury to send a message to society about the general problem of child sexual abuse qualifies as such an improper emotional appeal.

Here, the Prosecutor’s statement that, “If Defense Counsel’s argument concerning JT’s credibility has any merit, . . . the State may as well just give up prosecuting child sex abuse cases, and the law might as well say that ‘the word of a child is not enough’” also qualified as an improper appeal to passion and prejudice.

The Court further reasoned that even if the Prosecutor’s argument was deemed purely a response to the defendant’s argument, Defense Counsel never suggested that the jury should not believe JT because of his age. Furthermore, nothing in Defense Counsel’s closing argument, therefore, warranted the prosecutor’s message that the State may as well give up prosecuting child sex abuse cases if JT were not believed and Thierry acquitted.

Finally, the court reasoned that the Prosecutor’s arguments had a substantial likelihood of affecting the verdict. The outcome of the case depended entirely on whether the jury chose to believe JT’s accusations or Thierry’s denial. Consequently, the Prosecutor’s remarks created a substantial risk that the jury decided to credit JT’s testimony for improper reasons. The prosecutor’s remarks exacerbated that risk by misrepresenting Defense Counsel’s argument so as to unfairly undermine Thierry’s defense.

The Court of Appeals reversed Thierry’s convictions and remanded the case for further proceedings.

My opinion? Good decision. Generally, it’s a professional courtesy to not object during opposing counsel’s closing arguments. It’s considered rude. Nevertheless, defense attorneys must object at all times when appropriate, even if doing so is frowned upon by judges and juries. Prosecutorial misconduct happens all of the time, and ESPECIALLY during closing arguments. Those statements, made again and again, definitely affected the outcome of the case. Again, good decision.

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