Category Archives: Washington Court of Appeals

WA Privacy Act Does Not Suppress or Protect Audio Recordings of Sexual Assault

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Washington Privacy Act, Whatcom County Criminal Defense, , , , ,

Recorded conversations: A warning and call for change - Tampa Bay Business & Wealth

In State v. Kamara, the WA Court of Appeals held that the recorded sounds of a sexual assault are not a “private conversation” as defined by the Privacy Act.  Therefore, a recording of such sounds, made without the consent of the defendant, is admissible at trial.

BACKGROUND FACTS

Under Washington’s Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. And evidence obtained in violation of the privacy act is typically inadmissible at trial.

Mr. Kamara and B.T. met at a mutual friend’s birthday party in July 2019. B.T. had seen Kamara before at various events with members of the Liberian community. B.T. knew Kamara as JR. After the party, Kamara sent B.T. a friend request on Facebook. They began messaging each other on Facebook. Kamara asked B.T. out but she declined because she was in a relationship. Kamara was persistent and asked several more times.

Because Kamara kept pushing, on August 30, 2019, B.T. agreed to meet with him. Once at Kamara’s apartment, Kamara offered B.T. a drink. B.T. declined, but Kamara poured her some wine. They watched a program on TV. After some time, Kamara sat next to B.T. on the couch and then he began putting his hands on her, stroking down her arm, and leaning against her.

B.T. got up to use his bathroom and give herself some time to think. While in the bathroom, B.T. activated a recording app on her phone. At first, she just played with it, recording sounds and then listening. The next time she activated it, she got a notification and switched to a different app on her phone without stopping the recording.

When she returned to the living room, B.T. sat farther away from Kamara on the couch and continued scrolling through her social media to distract herself. Kamara moved closer and began making sexual remarks and advances toward B.T. B.T. told him she had to go, since she had work the next morning, but Kamara insisted she stay until 2:00 a.m. B.T. told Kamara “no” multiple times and told Kamara not to touch her.

B.T. told Kamara she would just nap on the couch until he took her home at 2:00 a.m., but he wanted her to go to his room. Kamara forced B.T. into his bedroom by pulling her off the couch and pushing her back until she was pushed onto his bed. He pinned her arms to the bed and then used his full body weight on her so she couldn’t move. He pulled her pants down and raped her while she cried and repeatedly told him “no, don’t, and I don’t want to do this.” B.T. tried to fight him off, but did not succeed.

Sounds of the ordeal were audio-recorded on B.T.’s phone.

After B.T. continued to cry and beg Kamara to stop, he finally got off of her and walked out of the room. B.T. testified that she felt defeated. When Kamara returned and started touching her again, B.T. didn’t fight, she “just let him do what he had to do.” Kamara then offered to take her home. Once home, B.T. texted her best friend about what had happened.

The next day, B.T.’s friend took her to Auburn Regional Medical Center where B.T. underwent a sexual assault examination. Afterward, she discovered the audio recording on her cell phone. She emailed the recording to police. Kamara was arrested and charged with rape in the second degree.

THE JURY TRIAL

Before trial, Kamara moved under CrR 3.6 to suppress the audio recording as inadmissible under Washington’s privacy act, RCW 9.73.030. The trial judge found that the contents of the recording do not capture a conversation.

“What is recorded is not an exchange of information,” said the trial judge. “Instead, what it captures is an act of sexual assault.” The entire recording was played for the jury. As a result, the jury found Kamara guilty of rape in the second degree.

Kamara appealed his conviction. He argued that the trial judge erred in admitting the victim’s cell phone audio recording of the rape because it was a private conversation made without his consent and violated the privacy act.

COURT OF APPEALS’ ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that Washington’s Privacy Act is considered one of the most restrictive in the nation. Under the Privacy Act, it is generally unlawful to record a private conversation without first obtaining consent of all persons engaged in the conversation. Information obtained in violation of the act is inadmissible in any civil or criminal case.

The Court discussed whether a recorded communication is “conversation.” Following that, it discussed whether the communication between Kamara and B.T. was a conversation.

“In determining whether a communication between individuals constitutes a ‘conversation’ under the privacy act, courts use the ordinary meaning of the term: “oral exchange, discourse, or discussion.” State v. David Smith, 85 Wn.2d 840, 846, 540 P.2d 424 (1975). Recordings of sounds that do not constitute a ‘conversation’ do not implicate the privacy act. David Smith, 85 Wn.2d 846. In particular, sounds of an assaultive act are not a conversation protected by the privacy act; a recording of such noise is admissible.” ~WA Court of Appeals.

Based on its review of the recording, the Court of Appeals agree with the trial court’s conclusion that the last nine minutes of the recording do not constitute a conversation, and instead record an assault.

But there is no “exchange of ideas and words” in the last nine minutes of the recording. And unlike in both Smith cases, the recording did not capture brief oral exchanges between B.T. and Kamara.

With that, the Court of Appeals agreed with the trial court that the last nine minutes of the recording contains the sounds of a sexual assault being committed. “This portion of the recording is not a private conversation as contemplated by the privacy act,” said the COurt of Appeals. It affirmed Kamara’s conviction and rejected his appeal.

My opinion? Washington courts are very protective of citizens’ privacy. Privacy issues are often implicated when law enforcement uses any form of electronic surveillance. True, Washington’s one-party consent law is among the most restrictive in the nation. Most legal and policy issues in this area involve the non-consensual acquisition of “private” communications. This is a highly sensitive area because it involves both fear of “big brother” and concerns for privacy.

Clearly, however, situations such as this case circumvent the protections of WA’s Privacy Act.

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.

“No Hostile Contact With Police” Sentencing Condition Held Unconstitutionally Vague

Bellingham Defense Attorney, Burglary, Constitutional Rights, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Void for Vagueness Doctrine

In State v. Shreve, the WA Court of Appeals held that a felony sentence condition prohibiting the defendant from having any future hostile contact with law enforcement was unconstitutionally vague.

BACKGROUND FACTS

In March 2022, Shreve attended a party at a hotel. He got into a physical altercation with another individual at the hotel. A hotel security guard intervened. When approached by the security guard, Shreve drew a knife and lunged toward him. The security guard blocked the attack and disarmed Shreve. The security guard confiscated the knife and brought Shreve to the lobby.

Police were dispatched. Upon arrival, a police officer saw Shreve seated in the lobby while the security guard stood nearby. Shreve appeared to be intoxicated and angry. The police officer and the security guard initially decided to allow Shreve to leave the hotel without his knife. However. Shreve escalated the situation by suddenly and aggressively moving toward the security guard.

A physical scuffle ensued. The officers forced Shreve to the ground and attempted to handcuff him. Ultimately, Officer Hannity was forced to use his taser to subdue Shreve.

On June 30, 2022, Shreve pleaded guilty to a single count of second degree burglary. Shreve was sentenced the same day. As a first-time offender, Shreve was sentenced to one day of confinement and twelve months of community custody. The sentencing court imposed several community custody conditions, including “No hostile contact with law enforcement/first responders.”

Shreve appealed his community custody sentencing condition. He argued that the community custody condition prohibiting him from having “hostile contact” with law enforcement is unconstitutionally vague and not crime-related. Shreve also argued that the condition was overbroad and infringed on his First Amendment rights.

COURT’S ANALYSIS & CONCLUSIONS

Ultimately, the Court of Appeals agreed with Mr. Shreve.

First, it addressed Mr. Shreve’s arguments that his community custody condition is unconstitutionally vague. He asserts the term “hostile” is not subject to a clear definition and is especially susceptible to arbitrary enforcement because it could encompass a wide range of everyday conduct and permit law enforcement officers to decide subjectively for themselves what constitutes hostile behavior.

“Whether a condition is sufficiently specific is a constitutional issue,” said the Court of Appeals. “Due process requires that individuals have ‘fair warning’ of what constitutes prohibited conduct.”

Next, the Court of Appeals applied a two-prong analysis to determine whether a condition is sufficiently specific and not unconstitutionally vague. A condition is not unconstitutionally vague if (1) it defines the prohibited conduct so an ordinary person can understand what the condition means, and (2) it provides ascertainable standards to protect against arbitrary enforcement.

1. THE TERM “HOSTILE” DOES NOT CLARIFY WHAT BEHAVIOR IS PROHIBITED.

The Court reasoned that here, the term “hostile” does not clarify what behavior is prohibited. The term “hostile” has a wide variety of dictionary definitions, which is indicative of its imprecision in this context. An individual’s conduct may be considered hostile when it is marked by malevolence and a desire to injure. However, it may also be considered hostile when it is marked by antagonism or unfriendliness.

“Given the broad range of conduct this term could cover, what the condition prohibits is guesswork. Thus, the ambiguous scope of the term “hostile” fails to provide Shreve with fair warning of the type of behavior prohibited by the condition. The first prong of the vagueness analysis fails.” ~WA Court of Appeals

2. THE CONDITION WAS SUSCEPTIBLE TO ARBITRARY ENFORCEMENT.

The Court of Appeals explained that a community custody condition is unconstitutionally vague when enforcement relies on a subjective standard. It reasoned that here, even assuming Shreve could generally understand what “no hostile contact” means, the condition fails the second prong because it is overly susceptible to arbitrary enforcement.

“Considering that interactions with police officers are often investigative or even adverse in nature, separating hostile contact with law enforcement from an adverse, but non-hostile, contact is simply too subjective to be constitutional.” ~WA Court of Appeals

With that, the Court of Appeals decided  Shreve’s “no hostile contact with law enforcement” condition was unconstitutionally vague.

My opinion? However well-intentioned by the sentencing court to protect law enforcement and first responders from enduring undeserved aggressive interactions, this particular community condition cannot withstand constitutional scrutiny.

Clearly, some community custody conditions are unconstitutional. Best to avoid felony convictions altogether. 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.

“Rapid Recidivism” Sentencing Aggravator Upheld

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Vehicular Homicide, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Unusual Jail Sentences: When the Punishment Really Fits the Crime - A&E True Crime

In State v. Jackson, the WA Court of Appeals held the Sentencing Aggravator of committing a criminal current offense shortly after release from incarceration on a different criminal conviction was not inappropriate. The sentencing aggravator was not unconstitutionally vague simply because “shortly after” is not defined.  Also, committing Vehicular Homicide and Felony Hit and Run only 93 days after release from incarceration constituted “shortly after.”

BACKGROUND FACTS

On November 11, 2015, Mr. Jackson crashed his vehicle into a large power vault while driving under the influence of alcohol. A passenger in the vehicle died instantly from skull fractures and brain avulsion as a result of the “extremely high speed crash. The vehicle was traveling at nearly 80 miles per hour, significantly higher than the posted 25 mile per hour speed limit, when the collision occurred. Jackson’s blood alcohol content was later calculated to have been between .135g/100mL and .22g/100mL. Jackson fled the scene without reporting the collision or seeking medical care for his passenger. He also evaded police until the next morning, when he “aggressively resisted arrest.”

Following a bench trial, Jackson was convicted of Vehicular Homicide and Felony Hit and Run. The superior court found that these offenses had occurred “shortly after” Jackson’s release from incarceration on August 10, 2015. Accordingly, the court determined that, as to both convictions, the aggravating circumstance of rapid recidivism applied. At the time, Jackson had two prior felony convictions, including a conviction of second degree robbery.

For those who don’t know, Prosecutors can offer evidence of aggravating factors that would merit a harsh sentence during trial. Criminal statutes often identify specific factors that should result in harsher punishments. A common aggravating factor is a prior record of similar convictions. Other aggravating factors typically relate to the circumstances of the offense itself, such as the use of a weapon or the severity of the injuries suffered by a victim. With the exception of prior convictions, a court may not use aggravating factors to impose a harsher sentence than usual unless the jury found those factors to be true beyond a reasonable doubt.

Based on these prior convictions, the sentencing court imposed an exceptional upward sentence on Mr. Jackson based on aggravating factors. It determined that Jackson was a persistent offender and sentenced him to life imprisonment without parole. The court also determined that an exceptional sentence was appropriate and imposed a sentence of 400 months of incarceration.

Jackson appealled, in part, on arguments that the aggravating circumstance of rapid recidivism is unconstitutionally vague. He further asserts that the evidence is insufficient to support a finding that he committed the offenses “shortly after being released from incarceration” under RCW 9.94A.535(3)(t). Thus, he argued, the court erroneously imposed an exceptional sentence based on the rapid recidivism aggravator.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that under WA’s Sentencing Aggravator Statute, a sentencing court may impose an aggravated exceptional sentence based on a finding that the defendant committed the current offense shortly after being released from incarceration. It also acknowledged, however, the term “shortly after” is nowhere defined in the statute.

“When a statute does not define terms alleged to be unconstitutionally vague, we may look to existing law, ordinary usage, and the general purpose of the statute to determine whether the statute meets constitutional requirements of clarity,” said the Court of Appeals. It further reasoned that here, Jackson committed the current offenses on November 11, 2015, after being released from incarceration on August 10, 2015—a period of 93 days. He needed to demonstrate that a person of reasonable understanding would have to guess that reoffending 93 days after release from incarceration would subject the defendant to an exceptional sentence pursuant to RCW 9.94A.535(3)(t). “Jackson has not done so,” said the Court of Appeals. “Accordingly, the rapid recidivism aggravator is not unconstitutionally vague as applied to his case.”

Next, the Court of Appeals addressed Jackson’s argument that there was insufficient evidence of the rapid recidivism aggravator because he committed “impulse crimes” that are unrelated to his prior offenses”

“Here, Jackson committed offenses while highly intoxicated that resulted in the violent death of another person. He then sought to avoid accountability by fleeing the scene and aggressively resisting arrest when later discovered. He did so only 93 days after his release from incarceration. Whether Jackson’s conduct constituted rapid recidivism is a question for the finder of fact. Plainly, some rational fact finders could conclude that Jackson committed the current offenses “shortly after” his release from incarceration, and that such conduct evidenced disdain for the law, rendering Jackson particularly culpable in committing those offenses. Accordingly, sufficient evidence supports the resentencing court’s rapid recidivism finding.” ~WA Court of Appeals

With that, the Court of Appeals concluded that Jackson’s claims on appeal were without merit. The Court affirmed his exceptional sentence imposed by the lower court.

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. Ross: Washington’s Unlawful Possession of a Firearms Statute Is Constitutional

Bellingham Defense Attorney, Constitutional Rights, felony, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

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In State v. Ross, the WA Court of Appeals held that the Second Amendment does not bar the state from criminalizing the possession of firearms by felons. Consequently, Washington’s Unlawful Possession of a Firearms in the First Degree statute is constitutional.

BACKGROUND FACTS

Mr. Ross was convicted of Unlawful Possession of a Firearms in the First Degree. His conviction was based on a prior 2010 conviction for second degree burglary. Unfortunately for Ross, his burglary conviction is a defined “serious offense” under WA’s Sentencing Reform Act.

Ross appealed. He argued that under the Second Amendment and New York State Rifle & Pistol Ass’n v. Bruen, Washington’s Firearms Statute RCW 9.41.040(1) was unconstitutional as applied.

COURT’S ANALYSIS & CONCLUSIONS

The Court began with a critique of the Second Amendment right to bear arms. The Court recognized, however, that the right secured by the Second Amendment is not unlimited. In District of Columbia v. Heller, the U.S. Supreme Court identified several longstanding prohibitions, including possession by felons:

“Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” ~WA Court of Appeals quoting District of Columbia v. Heller.

Next, the Court of Appeals analayzed the U.S. Supreme Court’s recent decision in New York State Rifle & Pistol Ass’n v. Bruen. In Bruen, the Supreme Court considered and struck down New York’s regulatory licensing program requiring applicants to prove that they had “proper cause” to carry a handgun in public.

The WA Court of Appeals emphasized that Bruen was intentionally drafted to be limited in its scope. As a result, Bruen did not overrule Washington’s own time-stested caselaw on the subject matter:

“Indeed, at least 11 times the majority referenced the Second Amendment right of “law-abiding” citizens . . . Of the six justices in the majority, three wrote or joined in concurring opinions clarifying the scope of their decision. We hold that consistent with Heller, McDonald, and Bruen, the Second Amendment does not bar the state from prohibiting the possession of firearms by felons as it has done in RCW 9.41.040(1). RCW 9.41.040(1) is facially constitutional.” ~WA Court of Appeals.

Next the WA Court of Appeals adressed Ross’s argument that because his underlying crime of second degree burglary was nonviolent,  RCW 9.41.040(1) was unconstitutional as applied.

“We disagree for two reasons,” said the Court. First, Ross’s attempt to distinguish violent and nonviolent felons is of his own construct. There are no prior court opinions distinguishing violent felons from nonviolent felons. Second, the legislature has defined second degree burglary as a violent crime:

“The prohibition on possession of firearms under RCW 9.41.040(1)(a) applies to any person previously convicted of “any serious offense.” A “serious offense” is defined by the same statute to include “[a]ny crime of violence.” RCW 9.41.010(42)(a). And a “crime of violence” is defined to include burglary in the second degree . . . Ross offers no support for the proposition that the legislature did not intend to define burglary in the second degree as a serious offense and a crime of violence.” ~WA Court of Appeals

With that, the WA Court of Appeals upheld Mr. Ross’s conviction.

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

The Right to Privately Speak With Defense Counsel

Assault, Bellingham, Coronavirus, Drive-By Shooting, Eluding, Firearm, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Court hearings via video conference have pros and cons, area lawyers say - masslive.com

In State v. Bragg, the WA Court of Appeals held that the trial court violated Mr. Bragg’s
right to confer with his attorney by requiring Bragg to participate in all nontrial
hearings via Webex while his counsel appeared in the courtroom.

BACKGROUND FACTS

Mr. Bragg allegedly fired a gun at sheriff’s deputies during a high-speed car chase. He was apprehended. The State charged him with three counts of Assault in the First Degree, Drive-By Shooting, Attempting to Elude, and Fiream Offenses. The trial court set Bragg’s bail at $750,000, which he was unable to pay.

Before trial, the court granted multiple continuances requested by Bragg and the State. For all pretrial proceedings, Bragg appeared on video via Webex from jail, while his counsel and the State appeared in person before the trial judge. Multiple times, Bragg expressed frustration with the pretrial proceedings and distrust of his counsel. At a hearing on December 29, 2021, defense counsel tried to withdraw due to allegedly irreconcilable conflicts. The court denied counsel’s motion to withdraw.

The four-day jury trial began January 3, 2021. Bragg appeared in person for trial. After the State rested, Bragg did not call any witnesses. The jury then found Bragg guilty of numerous counts. The court sentenced Bragg to 648 months of prison. Again, Bragg appeared at sentencing via Webex.

On appeal, Bragg argues that at least 8 court hearings were critical stage proceedings. Consequently, the court violated his Sixth Amendment rights because he was unable to privately consult with his attorney during those hearings.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals began by saying that a criminal defendant is entitled to the assistance of counsel at “critical stages” in the litigation. A “critical stage” is one “‘in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or in which the outcome of the case is otherwise substantially affected.

Furthermore, the constitutional right to the assistance of counsel carries with it a reasonable time for consultation and preparation. This includes the opportunity for a private and continual discussions between the defendant and his attorney during the trial. The ability for attorneys and clients to consult privately need not be seamless, but it must be meaningful.

“Like the right to counsel in general, whether the court violated the defendant’s constitutional right to privately confer with his attorney is a very facts-specific inquiry.” ~WA Court of Appeals.

The Court of Appeals also pointed out that in February 2020, our governor declared a state of emergency due to the COVID-19 Pandemic. It discussed how the WA Supreme Court authorized criminal defendants to appear via video.

Nevertheless, the Court of appeals reminded all parties that the Supreme Court’s pivot to video court hearings was meant to be limited in its scope:

“However, the Supreme Court further made clear that for all hearings that involve a critical stage of the proceedings, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.” ~WA Court of Appeals

In rendering its decision, the Court of Appeals reasoned the Supreme Court made it clear that for all hearings that involve a critical stage of the proceedings. Also, courts shall provide a means for defendants and respondents to have the opportunity for private and continual discussion with their attorney.

“Here, by way of summary, the trial court violated Bragg’s right to counsel by not providing guidance to Bragg and his counsel about how to confer privately during at least four nontrial critical stage proceedings and by placing an unreasonable expectation on Bragg to assert his rights. And the State fails to meet its burden to prove beyond a reasonable doubt that such errors were harmless. Thus, without making any comment on the weight of the evidence or the conduct of the trial, we are compelled to reverse and remand this matter for further proceedings.” ~WA Court of Appeals

With that, the Court of Appeals revesed Mr. Bragg’s convictions.

My opinion? The use of technology in the courtroom has resulted in numerous benefits to the litigants and the public. These technological benefits should only improve as our courts, judges and litigants become more familiar with the features of the existing technology.

Clearly, however, the over-use of technology may undermine a defendant’s right to legal representation.

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.

Remote Jury Selection

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Remote Jury Selection, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

REMOTE JURY SELECTION DURING A PANDEMIC - BCBA

In State v. Wade, the WA Court of Appeals held that Remote Jury Selection does not violate the right to a jury drawn from a fair cross-section of the community.

FACTUAL BACKGROUND

Mr. Wade was convicted of first degree burglary, first degree robbery, and second degree assault (X2) following an attack on a married couple and their grandson.

His jury trial took place during the COVID-19 Pandemic. At that time, King County Superior Court had just reopened for in-person criminal jury trials. Nevertheless, remote jury selection was still the preferred process for conducting voir dire. This process allowed the parties to conduct jury selection by video conference using the ZOOM Meeting Application.

Mr. Wade objected to electronic or virtual jury selection on various grounds. He argued this process violated his constitutional right to a jury drawn from a fair cross-section of the community. The trial court denied his motion. The jury found him guilty as charged.

On appeal, Wade challenged the use of remote videoconferencing technology for jury selection pursuant to court orders authorizing its use to reduce risk of COVID-19 exposure. He claims this method of jury selection violated his right to a jury drawn from a fair cross-section of the community because it excluded people based on their race and economic status, as well as his right to a fair trial.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals gave its criteria for establishing a violation of the defendant’s right to a jury drawn from a fair cross-section of the community:

“A prima facie violation requires three elements: (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.” ~WA Court of Appeals

Applying this criteria, the Court acknowledged that Wade indeed established that both African-Americans and people of low economic status comprise distinct groups.

“However, Wade fails to show that representation of these groups in the venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community,” said the Court. “He presents no evidence establishing the proportion of African-Americans or the prevalence of low economic status either in King County or Wade’s venire.”

Furthermore, the Court found that Wade failed to establish the third element of his case. Here, potential jurors had already been selected from the jury pool, summonsed by postcard, questioned, and hardship dismissals granted before the technical requirements of remote jury selection were introduced.

With that, the Court of Appeals upheld Wade’s 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.

Drivers Can’t Consent to Police Searching a Passenger’s Belongings

Bellingham Defense Attorney, Drug Offenses, felony, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Should Cops Be Allowed to Rip Up Your Stuff While Looking for Drugs? | The New Republic

In State v. Garner, No. 56861-6-II (2023), the WA Court of Appeals held that a driver’s consent to search their car does not extend to searching the contents of closed containers inside the car that do not belong to the driver.

BACKGROUND FACTS

A police officer arrested Mr. Garner on an outstanding warrant after stopping a car and encountering Garner as a passenger. Garner tried to flee on foot but the officer apprehended him. After placing Garner under arrest, the officer spoke with the car’s driver, who said Garner left three backpacks behind in her car. The officer asked the driver for permission to search the car and she granted it.

The officer then searched Garner’s backpacks without requesting his permission and found controlled substances. Later testing established that the controlled substances found in the backpacks were 86.9 grams of methamphetamine and 3.8 grams of heroin.

The State charged Garner with two counts of possession of a controlled substance with intent to deliver. Before trial, Garner moved to suppress evidence obtained from the warrantless search of his backpacks. The trial court denied Garner’s suppression motion. After a bench trial, the trial court found Garner guilty of both counts of possession with intent to deliver.

On appeal, Mr. Garner argued that the trial court improperly denied his suppression motion.

COURT’S ANALYSIS & CONCLUSIONS

In short, the WA Court of Appeals held that the trial court should have granted Garner’s suppression motion. It reasoned that a person’s bag or closed container heightened protection under the federal and state constitutions. It emphasized that the Washington Supreme Court has also recognized an expectation of privacy in purses, briefcases, and other traditional containers of personal belongings.

Here, the defendant passenger had a legitimate expectation of privacy in the backpacks he left inside the car when he fled from the police during a traffic stop.  He did not abandon the backpacks or relinquish his privacy interest in them because he was in the vehicle with permission, and took steps to conceal the backpacks from the officer before fleeing.

The Court of Appeals also reasoned that that the driver’s consent to search her car did not extend to Garner’s backpacks.

“Garner had a reasonable expectation of privacy in his backpacks. And while Washington case law does not squarely address whether a passenger has a reasonable expectation of privacy in items left in another’s car, our cases point to the conclusion that Garner did not relinquish his expectation of privacy when he left his backpacks in the driver’s car. Unlike the defendant in Samalia, Garner did not leave his backpacks in a stolen car. He left them in a car he had occupied with the driver’s permission.”

“And unlike the defendant in Reynolds, he did not remove the backpacks from the car and leave them on the road. Rather, Garner, who lacked housing, left his belongings with a person he knew. Moreover, Garner never disclaimed ownership of the backpacks. He took the time to put two of the backpacks on the vehicle’s rear floorboard and tried stowing the third backpack under the driver’s seat. The circumstances lend themselves to the conclusion that he intended to safeguard the backpacks until he could recover them.” ~WA Court of Appeals.

With that, the Court of Appeals reversed Garner’s convictions because the trial court should have granted his motion to suppress.

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

“Victim Penalty Assessment” Court Fine Held As Constitutional

Bellingham Defense Attorney, Court Fines, Eighth Amendment, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

HB 1795 reduces driver's license suspensions for court fines and fees - Oklahoma Policy Institute

In State v. Griepsma, the WA Court of Appeals held that a mandatory $500 victim penalty assessment is still not an excessive fine under the Eighth Amendment, even if it might be partially punitive.

BACKGROUND FACTS

IN 2019, a jury convicted Griepsma of six counts of third degree felony assault of a law enforcement officer and one count of third degree malicious mischief. The trial court imposed concurrent midrange sentences of 55 months for each of the assault convictions. It also imposed a current 364-day sentence for the misdemeanor, but it did not order community custody. Finally, the court imposed a mandatory $500 Victim Penalty Assessment (VPA).

Griepsma appealed imposition of the mandatory $500 VPA. He argued it was unconstitutional under the excessive fines clauses of the Eighth Amendment and the Washington State Constitution.

COURT’S ANALYSIS & CONCLUSIONS

The Court explained that under the Eighth Amendment, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” And under the WA Constitution, “Excessive bail shall not be required, excessive fines imposed, nor cruel punishment inflicted.”  Finally, for a fine to be unconstitutional, it must be at least partially punitive and it must be excessive.

On appeal, Griepsma argued that the United States and Washington Supreme Court cases make clear that the VPA is at least partially punitive. In support of his argument, Griepsma pointed to Timbs v. Indiana and City of Seattle v. Long. Both cases held that in their specific circumstances, the excessive fines clause was aprtially punitive and therefore unconstitutional.

“But neither case addresses whether the VPA is subject to an excessive fines clause analysis,” said the Court of Appeals. With that, it affirmed the trial court’s imposition of the mandatory $500 VPA.

My opinion? States and municipalities are increasingly relying on fines and fees imposed on defendants by criminal courts to fund their court systems and other government operations. Rather than relying on taxes, state and local governments have opted to extract wealth from their poorest and most vulnerable citizens in the form of “criminal legal debt”—financial sanctions imposed as part of the criminal legal system.

These types of penalties are inherently regressive—that is, they have a greater impact on those who are poorer as compared to those who are richer. And such a financial sanction would be difficult for many Americans to bear. A 2020 report issued by the Federal Reserve found that nearly 40 percent of adults would be unable to immediately cover an unexpected $400 expense.

Please contact my office if you, a friend or family member are charged with a crime. Avoid resolving your criminal case by paying excessive and/or punitive court fines. Hiring an effective and competent defense attorney is the first and best step toward justice.

A Trial Court’s COVID-19 Protocols Are “Trial Management Decisions.”

Bellingham Defense Attorney, Coronavirus, Jury Trial, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Courts Making Juror Safety a Top Priority | United States Courts

In State v. Ferguson, the WA Court of Appeals held that imposing COVID-19 protocols are “trial management decisions.” The use of masks, a transparent partition between counsel and client, and some jurors being seated behind counsel table during trial to allow for social distancing did not violate the defendant’s rights at trial.

BACKGROUND FACTS

On April 16, 2019,  a man and his son went for a walk. When they returned home, they noticed a man inside the garage. They recognized the man as Mr. Ferguson. An altercation occurred. Afterward, Ferguson fled the scene by running through a nearby field to a neighbor’s home. The police responded and ultimately found Ferguson at the neighbor’s house. Ferguson was arrested.

Ferguson was initially charged with first degree burglary. His charges were later amended to also include felony harassment, third degree malicious mischief, second degree criminal trespass of the neighbor’s house, bail jumping, and witness tampering.

TRIAL COURT’S COVID-19 PROTOCOLS

Following delay and multiple continuances partly due to the COVID-19 pandemic, Ferguson’s case proceeded to trial. Ferguson’s jury trial was the first to take place in the county since the beginning of the COVID-19 pandemic. Accordingly, the trial court implemented a variety of COVID-19 protocols for the trial.

Some members of the jury were seated behind the counsel tables in the courtroom gallery. This was done in order to socially distance the jurors and the participants. And everyone in the court room was instructed to wear face masks. The trial court also instructed the jurors to raise their hands if they could not hear something during the trial.

Plexiglass partitions were also placed between participants, including between Ferguson and his counsel at their table. Throughout the trial, Ferguson and his counsel would lean or move back behind the partition to speak to each other and would pass notes to each other.

After all witnesses had testified, Ferguson’s counsel requested a mistrial based on the COVID-19 protocols. Specifically, counsel argued the plexiglass partition between counsel and Ferguson, coupled with the seating arrangement for the jurors, compromised their ability to have necessary attorney-client communications. Ferguson’s counsel contended that because they could not hear each other through the plexiglass partition, the jurors were possibly able to overhear private communications. The trial court denied the motion for a mistrial.

The jury found Ferguson guilty of first degree burglary, third degree malicious mischief, second degree criminal trespass, bail jumping on a class A felony, and tampering with a witness.

Ferguson appealled his conviction on numerous arguments challenging the COVID-19 protocols used for his trial. Ferguson argued that the plexiglass between him and his counsel forced them to lean back to communicate with each other and may have allowed the jurors to overhear them. Ferguson also argued that the masks required him and his counsel to speak louder than they typically would, potentially disclosing their confidential attorney-client communications to the jurors and the State. Finally, he argued the trial court abused its discretion when it denied his request for a mistrial due to these protocols.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that Ferguson’s trial was the first in the county since the beginning of the pandemic and the suspension of all jury trials. The trial court implemented these protocols to ensure that the trial could safely proceed, as it was required to do by our Supreme Court.

“Plexiglass partitions, mandatory masking, and social distancing that forced jurors to be located throughout the gallery were all modifications to the trial court’s typical courtroom arrangement and procedures that fall within the court’s discretion and were based on the Supreme Court’s multiple orders.” ~WA Court of Appeals

The Court of Appeals further reasoned that the impact on Ferguson’s rights, while not negligible, was not onerous. Although Ferguson and his counsel were not able to communicate as easily as they would have been without the COVID-19 protections in place, the video record of the trial shows that he and his counsel were able to lean back minimally to speak around the plexiglass partition and write notes to each other. And the record shows that Ferguson and his counsel communicated in those ways frequently. Ferguson claims that he spoke louder than normal because of the masks, but private communication with his counsel would have been more likely because of the same social distancing requirements about which Ferguson now complains.

“No reasonable juror would draw any inference personally against Ferguson because of the implementation of plexiglass partitions, masks, and social distancing. COVID-19 protocols are simply not comparable to other inherently prejudicial decisions, like requiring the defendant to wear prison clothes or restraints that could signal dangerousness. See Caver, 195 Wn. App. at 780-81. Because impermissible factors were not brought into play and the changes furthered essential state interests, the COVID-19 protocols satisfy the closer scrutiny required for inherently prejudicial trial management decisions.” ~WA Court of Appeals

With that, the Court of Appeals held that the COVID-19 protocols implemented in Ferguson’s trial were permissive trial management decisions. Also, the trial court did not abuse its discretion by denying Ferguson’s motion for a mistrial.

Fortunately, I’ve held numerous jury trials in the era of COVID-19. Unfortunately, it hasn’t gotten an easier. How do you question a prospective juror when the juror is wearing a mask? Watch the eyes. After all, that is about all you can see of the juror’s face.  Body language plays a role.  Jury questionnaires are enormously helpful, as are the use of electronic exhibits. And making sure everyone—you, the judge, and jury—can hear what is being said is always important. It takes patience and care.

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.

“Cold-Hearted”

Bellingham Defense Attorney, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Opinion Testimony, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Recording Your Spouse – A Preliminary Guide | Goranson Bain

In  State v. Fleeks, No. 82911-4-I (January 23, 2023), the WA Court of Appeals held that a recorded police interrogation – where the detective referred to the defendant as being “cold-hearted” – was improperly admitted opinion testimony.

FACTUAL BACKGROUND

Nineteen-year-old Mr. Fleeks often sold drugs on the streets of Seattle to make money. On December 3, 2018, Fleeks was in the Pioneer Square neighborhood of Seattle selling drugs. After Fleeks received a text message from an unknown number, one of Fleeks’s regular customers approached him and told him the text message was from Mr. George who wanted to buy some crack cocaine. Fleeks met George and sold him a small amount of crack cocaine.

Unfortunately, a confrontation took place. As a result, George died from a gunshot wound inflicted from Fleeks.

After arrest, the police interviewed Fleeks and he denied any connection with George’s death. When the police showed Fleeks surveillance footage, he continued to deny being the person in the footage. Detective Cooper continued to ask Fleeks to explain the encounter and shooting. Detective Cooper asked whether George was “fucking with you or . . . something like that?” Fleeks continued to deny any involvement. Detective Cooper made the following comment:

“Do you wanna explain anything to me? This, this is probably your last chance to try to make yourself not look so cold-hearted and stuff like that. We have witnesses that put you there, that identified you there. We have those pictures, that’s off a video, dude . . . I, I mean you’re 19 . . . was there an argument was there a disturbance, a fight, anything . . . so do you wanna explain what happened?”

The State charged Fleeks with one count of murder in the second degree, and one count of unlawful possession of a firearm in the second degree.

At trial, Fleeks raised self-defense. The State offered the police interview recording as evidence to prove its case. Defense counsel objected to the jury hearing the interview recording. However, the judge allowed the jury to review the transcript from a portion of the police interview with Fleeks. The jury watched the interview, including the police detective referred to Fleeks as “cold-hearted.”

Robert Fleeks Jr. was convicted as charged. He appealled his conviction on numerous issues. One issue was whether the trial judge improperly allowed opinion evidence of the police detective saying Fleeks was “cold-hearted.”

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals agreed with Fleeks that the officer’s opinion testimony was improper.

The Court reasoned that “Opinion Testimony” is testimony that is “based on one’s belief or idea rather than on direct knowledge of the facts at issue.” Furthermore, witnesses may not testify in the form of opinions about the defendant’s guilt or innocence. Opinions on guilt are improper because they impede the jury’s ability to make an independent determination of the facts. And testimony given by police officers possess an aura of reliability that make them particularly problematic.

“Testimony that is not a direct comment on the defendant’s guilt or on the veracity of a witness, is otherwise helpful to the jury, and is based on inferences from the evidence, is not improper opinion testimony. Opinion testimony is improper when it comments on the veracity or intent of a witness, tells the jury what decision to reach, or leaves no other conclusion but that a defendant is guilty.” ~WA Court of Appeals

Fleeks argued that the comment was an improper opinion of guilt, specifically, referring to Fleeks as “cold-hearted.” Conversely, the State argued that Detective Cooper was referring to his casual demeanor and unwillingness to cooperate, in conflict with Fleeks’s claim of self-defense. The trial court found the interview admissible:

“We disagree with the trial court. While Detective Cooper’s statement is an observation that Fleeks did not appear remorseful, it improperly commented on Fleeks’s intent and effectually directed the jury to not believe Fleeks’s self-defense theory. Detective Cooper’s opinion that Fleeks should make himself ‘look not so cold-hearted’ could easily appear to the jury as a belief that Fleeks was guilty of murder, not acting in self-defense. This testimony could interfere with the jury’s ability to determine every fact beyond a reasonable doubt. ~WA Court of Appeals

Consequently, the Court of Appeals reversed Fleeks’s conviction on other grounds and remand for a new trial with instructions that the detective’s testimony should be redacted to exclude the “cold-hearted” statement.

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.