Category Archives: Washington Court of Appeals

State v. Larson: Retail Theft With Extenuating Circumstances

Due Process, felony, Knapstad Motion, Retail Theft, Theft, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Wire Cutter and Stripper Tool | ICC

In State v. Larson wire cutters, which were used to sever the wire that attached a department store security device to a pair of Nike shoes, are a “device designed to overcome security systems” for purposes of convicting the defendant of Retail Theft with Extenuating Circumstances.

Defendant Zachary Larson attempted to steal a pair of shoes from a retail store. The shoes were equipped with a security device that was attached to the shoes by wire. Yet, Larson, using wire cutters that he had brought into the store, severed the wire and removed the security device. When Larson tried to leave the store, he was stopped by security employees and, subsequently, was charged with one count of Retail Theft with Extenuating Circumstances under RCW 9A.56.360(1)(b), which criminalizes the commission of retail theft while in possession of a “device designed to overcome security systems.”

While the case was pending, he argued a Knapstad motion seeking dismissal of the charge. Therein, he argued that, as a matter of law, wire cutters do not constitute a “device designed to overcome security systems.” The trial court denied his Knapstad motion. On December 18, the trial court found Larson guilty as charged. He was sentenced to 60 days of confinement. Larson appealed on the argument that the trial court improperly denied his Knapstad motion and that wire cutters do, in fact, constitute a device designed to overcome security systems.

The court disagreed with Larson and stated the following:

“The plain meaning of the statute reveals the legislature’s intent to punish thieves who, anticipating that the possession ofa device which may be able to foil a store’s security system will be expedient to their cause, commit retail theft while in possession of such a device. In recognition of the fact that wire cutters are designed to cut wire, which is a common feature ofsecurity systems, we hold that, within the meaning of former RCW 9A.56.360(1 )(b), wire cutters constitute a ‘device designed to overcome security systems.'”

The Court also reasoned that the Division II Court of Appeals decision in State v. Reeves, ___ Wn. App. ___, 336 P.3d 105 (2014) – a recent opinion which held that “ordinary pliers” do not constitute a device designed to overcome security systems – was wrongfully decided :

“To exclude wire cutters from the statute’s reach on the basis that wire cutters may be used in other settings to achieve different ends would frustrate the legislature’s intent, while providing those inclined to commit retail theft with an unmistakable incentive to employ “ordinary devices,” as characterized by the Reeves court, to pursue their nefarious ends. Surely, the legislature did not intend such a result.”

With that, the Court upheld Larson’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.

State v. Weller: Community Caretaking

Assault, Community Caretaking, Constitutional Rights, Due Process, Evidence, felony, law enforcement, Plain View, police, Probable Cause, Search and Seizure, Search Warrant, Violent Crime, Washington Court of Appeals, , ,

Community Caretaking: Police May Make Stop Without Reasonable Suspicion

In State v. Weller, the WA Court of Appeals decided an officers’ entry into a garage to privately interview children about their allegations of abuse was lawful under the health and safety check community caretaking exception to the warrant requirement. Also, the seizure of the board the children stated was used by the parents while beating the children, was lawful under the plain view exception to the warrant requirement.

Sandra and Jeffrey Weller had six children in their care. In 2011, CPS became suspicious that the Wellers were abusing the children. Eventually, CPS conducted a welfare check of the family home with the assistance of numerous police officers. The officers did not have a search warrant. Officer Aldridge asked if they could come inside and speak with Sandra and the children.

Sandra stepped back from the door and the officers entered the house. The officers attempted to talk privately with the twins. Officer Jensen and CW talked in one room. Officer Aldridge and CG talked in another room, and ultimately moved into the garage for greater privacy. Both children described being beaten repeatedly with a board.

Officer Aldridge was standing in the same place as when she entered the garage when she looked around and saw a board leaning against the garage wall in plain view. She asked the children if that was the board used to beat them, and they replied that it was. Officers saw what appeared to be bloodstains on the board. Based on her observations, Officer Aldridge decided to remove the twins and the other children from the Weller residence.

After speaking with the children, the State filed multiple charges against the Wellers, including several charges of second, third, and fourth degree assault, and several counts of unlawful imprisonment. At trial, the Wellers tried to suppress the evidence and dismiss the case on theories

The Wellers moved to suppress the board, arguing that it was seized during an unlawful search of their residence without a warrant. They argued that the emergency aid exception to the warrant requirement was inapplicable because there was no immediate threat of injury to any persons and that entry into the house was a pretext for a search for evidence of a crime.

However, the trial court denied the motion to suppress, concluding in a detailed oral ruling that the officers lawfully were in the garage under the community caretaking exception and that they were authorized to seize the board because it was in plain view.

The case proceeded to a jury trial. The jury found Jeffrey guilty on most counts and the trial court sentenced him for five counts of Assault Second Degree, one count of Unlawful Imprisonment, one count of Assault Third Degree of a Child, and two counts of Assault Fourth Degree. The jury also found Sandra guilty on most counts and the trial court sentenced her for four counts of Assault Second Degree and one count of Unlawful Imprisonment. The defendants appealed.

The Wellers argue that the officers seized the board used to beat CW and CG in an unlawful warrantless search of their garage, and therefore that the trial court erred in denying their CrR 3. 6 motion to suppress the board. The Court disagreed, and held that the trial court did not err when it concluded that ( 1) the officers’ entry into the garage to privately interview the children was lawful under the community caretaking function exception to the warrant requirement, and (2) the seizure of the board was lawful under the plain view exception to the warrant requirement. Some background on these legal principles is necessary.

WARRANTLESS SEARCHES

Both the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit warrantless searches and seizures unless one of the narrow exceptions to the warrant requirement applies. The State bears the burden of demonstrating that a warrantless search or seizure falls within an exception to the warrant requirement.

 COMMUNITY CARETAKING

The community caretaking function exception to the warrant requirement arises from law enforcement officers’ community caretaking function and involves two aspects: officers rendering aid or assistance ( emergency aid exception) or making routine checks on health and safety (health and safety exception). Another exception to the warrant requirement is the plain view exception, which allows officers to seize an object if they are lawfully present in a constitutionally protected area and the object is in plain view.

A search pursuant to the community caretaking function exception must be totally divorced from  a criminal investigation. The exception does not apply where an officer’ s primary motivation is to search for evidence or make an arrest.

Here, the Court reasoned that the officers entered the garage because they were trying to find a private place to interview the children in conjunction with their welfare check. Nothing in the record suggests that the officers were searching the garage or looking for evidence.

HEALTH AND SAFETY CHECK INSPECTION

To invoke the health and safety check exception, the State must show that ( 1) the officer subjectively believed someone needed health or safety assistance, and (2) a reasonable person in the same situation would believe that there was a need for assistance, and ( 3) there was a reasonable basis to associate the need for assistance with the place searched. Next, the State must show that the encounter under this exception was reasonable, which depends upon a balancing of the individual’ s interest in freedom from police interference against the public’ s interest in having the police perform a community caretaking function.

Here, the Court reasoned that the three requirements for application of the health and safety check exception clearly were satisfied. The officers subjectively and reasonably believed that the Weller children needed health or safety assistance. A trained CPS investigator relayed to the officers her professional opinion that the Weller children were not safe and were expressing severe fear.

PLAIN VIEW

The ” plain view” exception to the warrant requirement applies when officers ( 1) have a valid justification for being in a constitutionally protected area, and ( 2) are immediately able to realize that an item they can see in plain view is associated with criminal activity. The test for determining when an item is immediately apparent for purposes of a plain view seizure is whether, considering the surrounding circumstances, the police can reasonably conclude that the item is incriminating evidence. Officers do not need to be certain that the item is associated with criminal activity – probable cause is sufficient.

Here, the Court decided the officers were lawfully present in the Wellers’ garage. Further, the surrounding facts and circumstances led the officers to believe that the board was evidence of a crime. As the welfare check progressed, the children said Mr. Weller periodically beat them with a board. Further, when the officers were in the garage, the children began to look for the board. And the children immediately confirmed that the board in the garage was in fact the board used to beat them. As a result, the Court held that the plain view exception to the warrant requirement applied to the officers’ seizure of the board.

The Court of Appeals upheld the 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. Rubio: “Exigent Circumstances” Found in Arrest for Possession of Methamphetamine.

Constitutional Rights, Drug Offenses, Due Process, Evidence, Exigent Circumstances, felony, law enforcement, Methamphetamine, police, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

EXIGENT CIRCUMSTANCES | Austin Criminal Defense Lawyer

In State v. Rubio, the WA Court of Appeals Division III upheld the defendant’s conviction for Possession of Methamphetamine because exigent circumstances existed to seize and search the defendant after it was discovered he had open warrants for his arrest and possibly witnessed a domestic violence incident.

Officers from the Spokane police department responded to a domestic disturbance call and found Ricardo J. Rubio inside the apartment at the reported address. Police ran a check on Mr. Rubio and discovered three outstanding warrants for his arrest. He was subsequently arrested and booked into jail. While being booked, police discovered methamphetamine in Mr. Rubio’s sock. He was convicted of possession of a controlled substance. The judge denied Rubio’s pretrial motion to suppress the evidence. He was later convicted at a bench trial.

Rubio appealed on the argument that he was unlawfully seized because he was merely witnessed the reported DV disturbance. The Court of Appeals, however, disagreed. They reasoned the seizure was lawful under the exigent circumstances exception to the warrant requirement.

Some background is necessary. Generally, warrantless searches are unreasonable per se under the Fourth Amendment to the United States Constitution. However, courts recognize a few carefully drawn exceptions to this rule. The State carries the burden of proving that a warrantless seizure falls into one of these exceptions. A recognized exception to the warrant requirement allows police to seize and search a person without a warrant when justified by “exigent circumstances.”

EXIGENT CIRCUMSTANCES

An officer is allowed to stop a witness under exigent circumstances when (1) the officer has reasonable cause to believe that a misdemeanor or felony involving danger or forcible injury to persons has just been committed near the place where he finds such person, (2) the officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and (3) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime. The rationale behind the exigent circumstances exception is to permit a warrantless search where the circumstances are such that obtaining a warrant would compromise officer safety, facilitate escape or permit the destruction of evidence.

Here, the court reasoned Mr. Rubio was lawfully seized even though the officer had no search warrant. The officer’s detention of Mr. Rubio was reasonable due to exigent circumstances because it was imperative that the officer quickly locate the injured woman and her assailant.

The court also reasoned the seizure under exigent circumstances was lawful for three reasons. First, the police officer had reason to believe that a crime was just committed at the address involving injury to a person. Second, the officer had reason to believe that each person who was in the apartment, including Mr. Rubio, had knowledge which would aid in the investigation of the crime. Third, the officer’s request for Mr. Rubio’s identification was necessary to determine the true identity of Mr. Rubio. Running the warrant check was needed to verify that Mr. Rubio was the person he claimed to be. Consequently, Officer Kirby’s seizure of Mr. Rubio was lawful under the exigent circumstances exception to the warrant requirement.

My opinion? This is a difficult case to swallow. Sure, Mr. Rubio had warrants for his arrest. And yes, the police can lawfully arrest and incarcerate people for that reason alone. And yes, the authorities regularly find illegal contraband during inventory searches and/or when defendants are booked into jail on warrants.

Still, it’s difficult to accept the notion that citizens can become criminal defendants by merely being at the wrong place at the wrong time; and that merely witnessing an alleged incident can lead one to be seized, searched and charged for a totally different crime than the one police responded to in the first place. Interesting.

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. Walker: Shackled Defendants

Assault, Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Homicide & Manslaughter, Jail, Jury Trial, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Judges now deciding daily if inmates should wear shackles in court - oregonlive.com

Interesting case on shackled defendants appearing at non-jury hearings . . .

In State v. Walker, the Court of Appeals decided a trial judge can decide whether and how a prisoner should be restrained by shackles in the courtroom.

Here, the defendant Vernon Walker pleaded guilty to one count of Murder in the Second Degree and one count of Assault in the Second Degree arising from a 2003 shooting. At his sentencing hearing, jail security officers transported him to court wearing handcuffs and leg restraints. The trial court denied Walker’s motion for an order removing the handcuffs for the hearing. On appeal, Walker argues that the denial of his motion violated his constitutional right to appear before the court free of physical restraint. He also argued for a new sentencing hearing.

On appeal, Walker argued he had a constitutional right to appear in court free from restraints, regardless of whether a jury was present, and that there was no factual basis to support his shackling. He contended that because he had no history of disrupting court proceedings or attempting to escape from the courtroom, there was no reason to believe that he would do so at his sentencing hearing. He argued that the State’s claims otherwise were speculation. Walker also asserted that restraints would dehumanize him and prejudice the sentencing judge.

 Despite Walker’s arguments, the Court of Appeals disagreed. They reasoned a trial judge has sole authority over whether and how a prisoner should be restrained in the courtroom. Furthermore, even though the law strictly forbids defendants from appearing before juries wearing shackles, a court may shackle a defendant at non-jury hearings on a “lesser showing” than is required to shackle a defendant during a jury proceeding. Finally, the court reasoned that restraints are permissible in non-jury hearings to prevent injury to people in the courtroom, disorderly conduct at trial, or escape.

My opinion? This is a tough case. It is well settled that in a proceeding before a jury a criminal defendant has a constitutional right to appear free from restraints or shackles of any kind. In State v. Williams, the defendant’s conviction for burglary was reversed because the trial court, without justification, denied the defendant’s motion that he and his witnesses be unshackled before the jury during the trial. The Williams court cited article 1, section 22 of the Washington State Constitution which provides “In criminal prosecutions the accused shall have the right to appear and defend in person,” and stated:

The right here declared is to appear with the use of not only his mental but his physical faculties unfettered, and unless some impelling necessity demands the restraint of a prisoner to secure the safety of others and his own custody, the binding of the prisoner in irons is a plain violation of the constitutional guaranty.

Here, in the Walker case, the Court of Appeals distinguished its reasoning from Williams to the extent that Williams only applied to times when the defendant was before the jury. Otherwise, for non-jury hearings, judges have full authority to decide whether defendants must appear in restraints and shackles.

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. Allen: Prosecutor Commits Misconduct With Phrase, “Should Have Known.”

Accomplice, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, police, Prosecutorial Misconduct, Sentencing, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Prosecutorial Misconduct in Texas: Right Now, it's an Appellate Fight - Dallas Justice Blog

In State v. Allen, the WA Supremes ruled that the Prosecuting Attorney committed prejudicial misconduct by misstating the standard upon which the jury may convict an accomplice.

This case involves the Lakewood police officer shootings.

The defendant Mr. Allen was friend and co-worker of Maurice Clemmons, who fatally shot four police officers in a coffee shop on November 29, 2009. Mr. Allen’s involvement transpired on the days leading up to the shooting.

This tragic story began in May 2009 when officers responded to reports that Clemmons was throwing rocks through his neighbors’ windows. Clemmons responded violently when officers arrived at the scene, and he was arrested for punching officers. He posted bail in November 2009, the month of the shootings.

Shortly after his release, Clemmons attended Thanksgiving dinner at his aunt’s house, where he expressed animosity toward the police. Specifically, he announced that if the police arrived to look for him, he would kill them and then go across the street to the elementary school and commit further acts of violence. Clemmons brandished a handgun while he described these acts. Allen, who was a friend and employee of Clemmons, was present at that dinner.

Three days later, Clemmons contacted Allen and told him they were going to wash the company truck. With Allen driving, Clemmons directed him to a car wash near a coffee shop in Lakewood. Upon arriving at the car wash, Allen parked the truck, got out, and walked across the street to a minimart.

During that time, Clemmons also left the car wash and entered the coffee shop, where the shootings occurred. When Allen returned to the truck, Clemmons appeared and told Allen that they had to leave. Allen claimed he drove only a few blocks until he left the truck upon discovering Clemmons was wounded. Allen also claimed that he did not know Clemmons was going to commit the murders.

Clemmons eventually ended up at his aunt’s house, and the truck was abandoned in a nearby parking lot. A few days later, Clemmons was killed by a Seattle police officer. Allen was arrested shortly afterward.

Allen was charged with four counts of Aggravated Murder in the first Degree. During trial, several spectators wore T -shirts that said, “‘You will not be forgotten, Lakewood Police,”‘ followed by the names of the four murdered officers. Allen objected to these T-shirts and asked that the shirts be covered. The trial court denied Allen’s motion.

At closing argument, the State was required to prove that Allen had actual knowledge that Clemmons would commit the murders. During closing argument, the prosecuting attorney initially stated the correct definition of “knowledge” as it was used in the jury instruction. However, immediately afterward, the prosecuting attorney stated that “for shorthand we’re going to call that ‘should have known.'” Also, the prosecuting attorney went on to repeatedly and improperly use the phrase “should have known” when describing the definition of “knowledge.”

The prosecuting attorney also presented a slide show simultaneously with his closing argument. This slide show repeatedly referred to the incorrect “should have known” standard. One slide even stated, “You are an accomplice if: … you know or should have known,” with the words “should have known” in bold. The prosecuting attorney made several more “should have known” comments in rebuttal argument.

The jury received instructions that correctly stated the law regarding “knowledge.” Particularly, instruction 9 said the following:

A person knows or acts knowingly or with knowledge with respect to a fact or circumstance when he or she is aware of that fact or circumstance. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact.

 Allen was convicted of four counts of Murder in the First Degree. Based on the aggravating circumstance, the trial court imposed an exceptional sentence of 400 years.

ISSUES ON APPEAL

The Court granted review on three issues: (1) Did the prosecuting attorney commit prejudicial misconduct by misstating the standard upon which the jury could convict Allen? (2) Does the “aggravator” found in RCW 9.94A.535(3)(v) apply to a defendant charged as an accomplice? (3) Was Allen prejudiced when spectators at trial wore T -shirts bearing the names of the murdered officers?

1. DID THE PROSECUTOR COMMIT MISCONDUCT?

The court ruled the Prosecutor committed prejudicial misconduct by misstating the standard upon which the jury could find Allen guilty. Here, the prosecuting attorney repeatedly misstated that the jury could convict Allen if it found that he should have known Clemmons was going to murder the four police officers.

The Court reasoned that, for example, the prosecuting attorney stated that “under the law, even if he doesn’t actually know, if a reasonable person would have known, he’s guilty.” As noted above, the “should have known” standard is incorrect; the jury must find that Allen actually knew Clemmons was going to murder the four police officers. Consequently, the Court concluded that the remarks were improper.

Furthermore, the improper comments prejudiced the defendant. First, the Prosecutor misstated a key issue of the case – knowledge. Second, the misstatement of law was repeated multiple times. Repetitive misconduct can have a “cumulative effect.” Third, the trial court twice overruled Allen’s timely objections in the jury’s presence, potentially leading the jury to believe that the “should have known” standard was a proper interpretation of law.

Fourth, and perhaps most important, the record reveals that the jury was influenced by the improper statement of law during deliberations. Finally, the misconduct by the State was particularly egregious. Based on the foregoing factors, the Court found that there was a substantial likelihood that the Prosecutor’s misconduct affected the jury verdict and thus prejudiced Allen.

 2. DOES THE “AGGRAVATOR” SENTENCING ENHANCEMENT APPLY TO AN ACCOMPLICE?

The Court answered “Yes” to this question. Here, the court sentenced Allen to an exceptional sentence based on the sentencing aggravator found in RCW 9.94A.535(3)(v). That statute contains no express triggering language automatically authorizing an exceptional sentence for accomplices. Therefore, Allen’s own misconduct must form the basis upon which the exceptional sentence applies.

The operative language of the statute here allows the court to sentence Allen above the standard range if the offense was committed against a law enforcement officer who was performing his or her official duties at the time of the offense, the offender knew that the victim was a law enforcement officer, and the victim’s status as a law enforcement officer is not an element of the offense.” Consequently, an exceptional sentence under RCW 9.94A.535(3)(v) may be imposed on remand if the jury finds the required elements based on Allen’s own misconduct.

3. DID THE SPECTATORS WEARING T-SHIRTS IN THE COURTROOM PREJUDICE ALLEN’S CASE?

The court decided that, based on the limited information in the record, it was unlikely that the t-shirts were inherently prejudicial. The T-shirts bore a message that said, “‘You will not be forgotten, Lakewood Police”‘ followed by a list of the victims’ names. The court said this message does not advocate for a message of guilt or innocence. Rather, the shirts were merely a silent showing of sympathy for the victims. Contrary to Allen’s arguments, the mere presence of words does not make a spectator display inherently prejudicial.

In conclusion, the prosecuting attorney committed prejudicial misconduct by misstating the proper standard upon which the jury could find Allen acted with knowledge. Based on that, the WA Supreme Court reversed the Court of Appeals and remanded for a new trial.

My opinion?

The shootings were exceptionally tragic. These officers left friends and family in the wake of their senseless death. That said, the Prosecutor in this case clearly committed misconduct. I’ve been in jury trials where Prosecutors will bend and stretch the the law when it comes to whether a defendant had knowledge they were committing a crime. Similar to the Prosecutor in this case, they’ll say “Well, the defendant should have known they were committing a crime.”

This is an ABSOLUTE misstatement of the law. “Knowing” and “Should Have Known” are two very, very different levels of understanding. Here, saying Mr. Allen “Should Have Known” that Clemmons would commit murder implies that Mr. Allen had a legal duty to know what Clemmons was thinking about before committing the heinous murders he committed. That’s wrong, and an improper statement of the law.

 Again, I extend my deepest condolences to the families and friends of the police officers who lost their lives. 

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. Davis: Unlawful Possession of Firearms, Rendering Criminal Assistance and Exceptional Sentences.

Bellingham Defense Attorney, Constitutional Rights, Due Process, Evidence, Exceptional Sentencing, felony, Firearm, Homicide & Manslaughter, Jury Trial, law enforcement, Mount Vernon Criminal Defense Attorney, police, Probable Cause, Rendering Criminal Assistance, Sentencing, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, Whatcom County Criminal Defense, , ,

Sherrard man to serve 7 years in prison for possession of stolen guns | wqad.com

WA Supremes gave an interesting opinion touching upon the defendants who were allegedly involved in the Lakewood police officer shootings from last year. In short, the Supreme Court could not reach a 5-4 majority opinion on the issue of whether the State lacked evidence to support the defendant’s convictions for Possession of a Stolen Firearm. However, the State reached a majority “No” decision on the issue of whether Exceptional Sentence applied to this case. 

The underlying facts of State v. Davis are notorious and undisputed. On Sunday, November 29, 2009, Clemmons entered a coffee shop just before 8:00 a.m. with two handguns and began shooting at four Lakewood police officers, fatally wounding three. The fourth officer struggled with Clemmons and shot Clemmons once in the side, but Clemmons wrested the fourth officer’s gun from him, fatally shot him, and left with the stolen gun.

While on the run, Clemmons contacted defendants Eddie Lee Davis and Letrecia Nelson shortly after the murders. Clemmons went to Davis’ home, requested a ride to a house in Auburn, and said he had been shot while killing four police officers. Davis drove Clemmons to Nelson’s home. Nelson let Clemmons and Davis inside. Clemmons told Nelson he had killed four police officers, been shot in the process, and stolen one officer’s gun.

At Clemmons’ request, he was given fresh clothing and help treating his gunshot wound. Nelson put some clothes and the stolen gun in a shopping bag that was left on a counter. Just before leaving, Clemmons asked where the gun was. Davis replied that it was in the bag on the counter and gave the bag to Clemmons. He left the home with the gun, and remained a fugitive from justice. On December 1, 2009, 2-3 days after the incident, Clemmons was gunned down by a Seattle Police Officer who pulled his car over.

Based on their actions following that contact, Davis and Nelson were charged by the Prosecutor and convicted at jury trial of Rendering Criminal Assistance and Possession of a Stolen Firearm. Davis was also convicted of Unlawful Possession of that self-same firearm. The conviction was appealed, and found its way to the WA Supreme Court.

The Court addressed the issues of whether (1) sufficient evidence supported Davis’ and Nelson’s convictions relating to possession of a firearm, and (2) whether the exceptional sentences for rendering criminal assistance factually were legally justified.

1. UNLAWFUL POSSESSION OF A FIREARM

The 4-person “majority” Court answered “Yes” to the question of whether sufficient evidence existed to support the convictions. The court reasoned there are two types of control: actual and constructive. A person actually possesses something that is in his or her physical custody, and constructively possesses something that is not in his or her physical custody but is still within his or her “dominion and control.”

For either type, to establish possession the prosecution must prove more than a passing control; it must prove actual control. The length of time in itself does not determine whether control is actual or passing, and whether one has actual control over the item at issue depends on the totality of the circumstances presented.

In light of the totality of the circumstances, the Court was convinced that the State presented sufficient evidence to support a finding that Clemmons temporarily relinquished control over the stolen gun to Davis and Nelson while his wound was treated and he changed clothes. There was no testimony that Clemmons made any specific requests or orders as to what should be done with the stolen gun while he was at Nelson’s home, and he did not even know where the gun was until he was ready to leave about 15 minutes later.

t is reasonable to infer that someone else decided what to do with the gun and that the decision-makers were Nelson and Davis because Nelson retrieved the shopping bag and put the gun inside it and Davis immediately responded when Clemmons asked where the gun was. Furthermore, both Nelson and Davis retained the ability to take further actions as to the gun until the time Davis gave it back to Clemmons because they knew where it was and Clemmons did not. Therefore, the court believed there was actual control sufficient to establish constructive possession.

2. EXCEPTIONAL SENTENCES

The Court answered “No” to the issue of whether the defendants should receive an exceptional upward sentence for their convictions. The Court said Exceptional Sentences are intended to impose additional punishment where the particular offense at issue causes more damage than that contemplated by the statute defining the offense. In that situation, the standard penalty for the offense is insufficient and an exceptional sentence based on an “aggravating factor” found by the jury remedies that insufficiency.

Here, the Court reasoned that, as a matter of law, the “aggravating factor” at issue cannot apply to Rendering Criminal Assistance charges.  Here, the “victim” was the public at large. However, Exceptional Sentences apply where there is “a destructive and foreseeable impact on persons other than the victim.” Because Rendering Criminal Assistance victimizes the general public, every member of the public is part of the victim class. There is no “other.” Therefore, the exceptional sentences imposed on Davis and Nelson were not legally justified.

The WA Supreme Court was highly divided on this issue. Justice Wiggins appeared to be the swaying vote. He concurred with the dissenting opinion that the evidence was insufficient to sustain Davis’s and Nelson’s firearm possession convictions. However, Justice Wiggins concurred with the majority opinion as far as the decision that the Exceptional Sentences imposed for Eddie Davis’s and Letricia Nelson’s convictions for Rendering Criminal Assistance were not legally justified.

Ultimately, the WA Supreme Court reversed the Court of Appeals and remand for further proceedings.

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. Huffman: Crossing the Centerline = DUI Arrest

Constitutional Rights, Due Process, DUI, law enforcement, misdemeanor, police, Terry Stop, Traffic Infractions, Uncategorized, Washington Court of Appeals, Washington State Patrol, , ,

Crossing A Double Yellow Line - i am traffic

Division I of the WA Court of Appeals decided that a single crossing of the centerline is sufficient to justify a traffic stop for a violation of RCW 46.61.100 Keep Right Except When Passing.

In State v. Huffman, defendant Sarah Huffman was arrested for driving under the influence of alcohol (DUI) after being pulled over for weaving in her lane, jerking back from the centerline and crossing the centerline on State Route 9. The two-mile section of the roadway is relatively straight, with a painted yellow line in the center that is at times a double solid line.

Police reports indicate the Trooper Eberle saw Huffman’s vehicle touch the centerline three times, each time immediately jerking back to the right side of the road. On the fourth occasion, the vehicle crossed the centerline by approximately one full tire width. Trooper Eberle did not recall any oncoming traffic at the time the vehicle crossed over the centerline. He stopped the vehicle and subsequently arrested the driver, appellant Sarah Huffman, for driving under the influence.

Huffman claimed the stop was unlawful because her single crossing of the centerline did not give rise to reasonable, articulable suspicion that she committed a traffic infraction under RCW 46.61.100. The district court agreed and granted her motion to suppress all evidence obtained after the stop. On appeal, the superior court reversed, concluding the stop was valid because Huffman committed a traffic infraction by crossing the centerline in violation of RCW 46.61.100.

Huffman appealed her case to Division I of the WA Court of Appeals. She argued that under State v. Prado, and its interpretation of RCW 46.61.140 Driving on Roadways Laned For Traffic, her momentary crossing of the centerline was not a traffic infraction and thus, there was no lawful basis for the stop.

Some background on RCW 46.61.140 and State v. Prado is necessary. In Prado, a law enforcement officer witnessed Mr. Tonelli-Prado’s vehicle cross an eight-inch white dividing the exit lane from the adjacent lane by two tire widths for one second. The Trooper pulled over Prado’s vehicle for violating RCW 46.61.140. This traffic statute addresses the safe changing of lanes (right or left or turn) and the use of a center lane, but does not mention a centerline. RCW 46.61.140(1) states:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply: (1) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The trial court found that that Prado’s motion to suppress was not appropriate because the vehicle actually crossed the lane line, rather than merely touching the lane line. Upon review, however, the Superior Court found that under a totality of the circumstances argument, that a brief incursion not resulting in a “safety problem” was not sufficient grounds to pull over the vehicle. The Prosecutor appealed the ruling of the Superior Court to Division I Court of Appeals. On appeal, Division I upheld the Superior Court and ruled that a vehicle crossing over the line for one second by two tire widths on an exit lane does not justify a belief that the vehicle was operated unlawfully under RCW 46.61.140(1).

In light of this background, Division I granted Huffman’s appeal to decide whether (1) State v. Prado applies and (2) whether the “as nearly as practicable” language of RCW 46.61.140 also applies to RCW 46.61.100.

The Court decided “No,” and “No.” The plain reading of the two statutes and their different objectives leads one to believe that the “nearly as practicable” qualifying language from RCW 46.61.140(1) does NOT apply to RCW 46.61.100. “Our decision in Prado is limited to its facts which involved only a violation of RCW 46.61.140, not RCW 46.61.100. Because it is undisputed that Huffman crossed the centerline, the officer was justified in stopping her to investigate a violation of RCW 46.61.100.” Based on that, the Court of Appeals vacated and reversed the trial court’s orders suppressing all evidence and dismissing the prosecution. The Court also reinstated the charges against Huffman and remanded this matter back to the district court for trial.

My opinion? The Huffman opinion is an attempt to limit the scope and applicability of Prado’s reasoning to RCW 46.61.140. Ever since Prado was decided 7 years ago, the Prosecutors and Judges in district courts have rallied against it. Prado took too much discretionary power out of the hands of police officers who follow and pull over motorists suspected of DUI. Here, the Court of Appeals “stopped the insanity” of Prado and limit its reasoning to violations of RCW 46.61.140 only.

Unfortunately, a pendular swing in one direction often gives momentum to a pendular swing in the opposite direction. More specifically, I fear that the reasoning of Huffman might be applicable to violations of RCW 46.61.670 Driving With Wheels Off Roadway. The statute says the following:

It shall be unlawful to operate or drive any vehicle or combination of vehicles over or along any pavement or gravel or crushed rock surface on a public highway with one wheel or all of the wheels off the roadway thereof, except as permitted by RCW 46.61.428 or for the purpose of stopping off such roadway, or having stopped thereat, for proceeding back onto the pavement, gravel or crushed rock surface thereof.

Therefore – and worst-case scenario – under Huffman, a motorist who briefly/unlawfully drives on a road with one or more wheels off the roadway can be pulled over and investigated for DUI.

Is this fair?

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. Nicholas: Court Rejects “Jury Nullification” Arguments

Constitutional Rights, Drug Offenses, Due Process, felony, Jury Nullification, Jury Trial, marijuana, Methamphetamine, Uncategorized, Washington Court of Appeals, , ,

What is Jury Nullification and Why is it Important? | Nevada CopBlock

VERY interesting opinion from the WA Court of Appeals raises and dismisses the issue of whether jury nullification has any place in jury deliberations.

In State v. Nicholas, a jury found defendant Scott Nelson guilty of Possession with Intent to Deliver Methamphetamine, Possession of Marijuana and Use of Drug Paraphernalia. Nicholas appealed the verdict and argued that the trial court errored when it allowed the Prosecutor’s jury instruction saying, it was the jury’s “duty to return a verdict of guilty.”

Some background on jury nullification is necessary. Basically, it occurs in a trial when a jury acquits a defendant, even though the jury believes the defendant is guilty of the charges. This happens when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case. Nullification is a juror’s knowing and deliberate rejection of the evidence or refusal to apply the law because the result dictated by law is contrary to the juror’s sense of justice, morality, or fairness.

Here, the defendant took issue with the notion that the “To Acquit” instruction from the Prosecutor states that jurors have a duty to acquit if they found the defendant guilty of the charges. This “duty” language, said the defendant, violates his right to have the jury acquit him if they disagreed with the law itself.

However, the Court of Appeals reasoned that the State of Washington’s 1874 case Hartigan v. Territory of Washington disassembles the defendant’s argument: The Hartigan court wrote, “A juryman is just as much bound by the laws of this territory as any other citizen. He acquires no right to disregard that law simply because he has taken an oath as juryman to aid in its administration.”

The court also reasoned, “Judges must declare the law, while jurors must swear to faithfully apply that law.” Their oath to faithfully apply the law is under RCW 4.44.260, which states the following:

When the jury has been selected, an oath or affirmation shall be administered to the jurors, in substance that they and each ofthem, will well, and truly try, the matter in issue between the plaintiff and defendant, anda true verdict give, according to the law and evidence as given them on the trial.

Consequently, the Court reasoned that the use of the word “duty” is consistent with the oath requirement that the jury give a true verdict, and that it does so according to the law and evidence.

Finally, the Court discussed the horrors surrounding the verdicts of defendants accused of killing and maiming individuals because of racial hatred, and that these jurors exercised jury nullification even though the evidence against the defendants was strong. The court describes how the murder trials involving the death of African American Emmett Till and NAACP leader Medgar Evers were horrible examples of jury nullification gone wrong.

The Court of Appeals concluded with a strong, scathing remark on jury nullification:

A fundamental value of America is the rule of law rather than rule by men. The Washington populace justifiably does not want activist judges who base decisions upon political views or moral judgments. The same should hold true for jurors. Jury nullification destroys the rule of law upon which America is based. As the 1992 Los Angeles riots evidence, nullification engenders anarchy.

My opinion? I see the pros and cons of this decision. On the one hand, I agree with the court that jury nullification can lead to horrible results and miscarriages of justice. On the other hand, although jury nullification is by no means a Constitutional right, it is an inherent feature of the use of jury trial verdicts. Sometimes, the law is simply unjust, misapplied by Prosecutors or simply out-of-touch with today’s reality.

For the most part, jury nullification is sometimes applied by juries yet rarely spoken about in open court. It is  certainly not supported by judges. 99.9% of all judges will refuse to formally instruct juries that the may “nullify” and acquit a defendant based on their disagreements with the law itself.

Indeed, judges constantly tell juries they must apply the law, not disagree with it! Judges know that the power to acquit a defendant does not require any instruction from the judge telling the jury that it may do so. In other words, although courts recognize that jury nullification occurs in practice, they will not promote it nor educate jurors about nullification.

Again, interesting 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. Lawson: Burglary & Voyeurism

Assault, Burglary, Constitutional Rights, Evidence, felony, Privacy, Probable Cause, Uncategorized, voyeurism, Washington Court of Appeals, , ,

How To Tell Who's In The Toilet Stall Next To You Without Peeking At Their Shoes - Allan Ishac

In State v. Lawson, the WA Court of Appeals supported the defendant’s convictions for both Voyeurism and Burglary. Here, the defendant was prosecuted for sneaking inside the women’s restrooms at Harrison Medical Center and Barnes & Noble and spying on different females from bathroom stalls as they entered and used the restroom facilities.

The Prosecution charged the defendant with one count of Burglary First Degree, two counts of Burglary Second Degree, one count of Assault Second Degree, one count of Voyeurism, and two counts of Criminal Attempt of Voyeurism. The jury returned guilty verdicts on each charge except for Assault Second Degree. The defendant appealed the jury verdicts on the argument that the State failed to introduce sufficient evidence to prove the Barnes and Noble voyeurism charge and each of the Burglary charges.

However, the Court of Appeals disagreed. Under statute, a person commits the crime of Voyeurism if he knowingly views another person in a place where that person would have a reasonable expectation of privacy. Here, a person has a reasonable expectation of privacy inside a restroom. The Court reasoned it is undisputed that the defendant viewed women by peeking over the restroom stall door in a place that was clearly delineated for use by women only. It stated, “Although the women’ s restroom was inside an otherwise public building and while a person might not usually disrobe inside the common area, one expects privacy in a restroom.”

 The Court also rejected the defendant’s argument that the evidence is insufficient to support Burglary convictions because voyeurism is not “a crime against person or property,” which is a prerequisite to a Burglary conviction. Instead, the Court reasoned that voyeurism is a crime against a person and, therefore, can serve as the predicate crime for Burglary Second Degree. The Court further reasoned there was sufficient evidence to conclude that the defendant was guilty of the Burglaries because he entered the women’ s restroom with the intent to commit a crime against a person or property.

With that, the Court affirmed the defendant’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. Goggin: Implied Consent Warnings for Blood Test & Crawford Issues

Blood Test, Constitutional Rights, Due Process, DUI, Evidence, felony, law enforcement, police, Terry Stop, Washington Court of Appeals, Washington Supreme Court, , ,

DUI Blood Test (A Former DA Explains How To Beat It In Court)

In State v. Goggin, Division II of the Court of Appeals held that when a blood test is collected pursuant to a search warrant, the officer is not required to advise the defendant that the defendant has a right to additional tests. Also, proof of the defendant’s prior DUI conviction from Idaho was admissible; and the admission did not violate the confrontation clause. 

Mr. Goggin was arrested for DUI. After taking Mr. Goggin in for a blood alcohol concentration (BAC) test, Officer Marcus read Mr. Goggin his implied consent warnings, including his right to have additional tests performed by a person of his own choosing. Mr. Goggin indicated he understood his rights and signed the implied consent form. Officer Marcus obtained a search warrant to draw a sample of Mr. Goggin’s blood. It was taken about three hours after his arrest and without any further independent-testing advisement. 

Mr. Goggin was charged with Felony DUI because he allegedly had four prior DUI convictions.

At trial, Goggin moved to suppress the results of the blood test based on the officer’s failure to advise him of his right to an additional test after obtaining the warrant. The trial court said, “This was a blood draw authorized by a search warrant. The trooper did not have to advise the defendant of the right to additional tests.” Later, Goggin was found guilty. He appealed.

During cross-examination, defense counsel asked Trooper Marcus whether he re-read the implied consent warnings to Mr. Goggin after obtaining the search warrant:

Defense counsel: Did you at any time advise him as part of any warnings related to the blood test that he could get an additional blood test?

Trooper Marcus: That was in part of the implied consent warnings for breath. It states in there that you have the right to additional tests administered by a qualified person of your own choosing.

Defense counsel: You have separate warnings for blood; do you not?

Trooper Marcus: We do, but implied consent warnings for blood weren’t read in this case.

Later in trial, the Prosecutor admitted evidence of the defendant’s prior DUI from Idaho. Although no witnesses actually testified that Mr. Goggin actually had a prior DUI from Idaho, the prosecutor successfully admitted into evidence the Judgment and Sentence conviction data from the Idaho court. Mr. Goggin tried dismissing the case based on the State’s failure to produce a witness from Idaho who could provide evidence that he had been arrested in Idaho. The court denied the motion, finding sufficient circumstantial evidence to go to the jury. The jury found Mr. Goggin guilty of felony OUI. He appealed.

The Court of Appeals held that the arresting officer was not required to advise Mr. Goggin of the right to additional tests because the blood draw was authorized by a search warrant, not the implied consent statute. The Court reasoned that City of Seattle v. Robert St. John, and  RCW 46:20.308(1) allows officers to “obtain a search warrant for blood alcohol tests regardless of the implied consent statute.”

In St. John, the motorcyclist refused to take the voluntary test; but, the evidence that the motorcyclist was driving under the influence constituted sufficient probable cause to justify a warrant. Similarly here, the search warrant and subsequent blood alcohol test were the result of evidence showing Mr. Goggin was driving under the influence. Thus, the State was not required to re-advise Mr. Goggin of his right to additional tests after issuance of the search warrant.

The Court also held that Goggin’s constitutional right to confront a witness under Crawford v. Washington were not violated when the State failed to produce a witness who could testify about Goggin’s prior DUI from Idaho. Here, the State met its burden of proving Mr. Goggin was the same Joseph Goggin convicted of the 2009 DUI in Idaho by submitting Mr. Goggin’s 2007 to 2011 Washington State Identification card.

his photographic identification card included Mr. Goggin’s height and weight, hair and eye color, and his address. This information matched the identifying information in the 2009 Idaho judgment and sentence. The identification card was issued in 2007 and was valid until 2011; thus, it corresponded with the date of the Idaho conviction. Accordingly, the State provided sufficient evidence of this fourth DUI to support the conviction for felony DUI.

Also, Mr. Goggin’s Idaho judgment and sentence was inherently trustworthy. It was not created in anticipation of litigation or to prove a fact at trial; therefore, it was not necessary to cross-examine the clerk who certified the document. A certified record not prepared for use in a criminal proceeding but created for the administration of an entity’s affairs is not testimonial evidence under Crawford v. Washington. Accordingly, the admission of the Idaho judgment and sentence did not violate Mr. Goggin’s confrontation rights.

The Court of Appeals upheld Mr. Goggin’s conviction.

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