Category Archives: Washington Court of Appeals

State v. Stately: Vehicular Homicide By Disregard Is NOT A Violent Offense; Some Defendants Eligible for First Offender Waiver.

Due Process, DUI, felony, First Time Offender Waiver, Homicide & Manslaughter, Legislation, Sentencing, Violent Crime, Washington Court of Appeals, , ,

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In State v. Stately, the WA Court of Appeals held that Vehicular Homicide By Disregard is NOT a Violent Offense and that some defendants are eligible for the First-Time Offender Waiver.

About a week before her 18th birthday, Ms. Stately drove a car while intoxicated.  Unfortunately, she caused an accident that killed her best friend.  Stately was charged — and later convicted — of Vehicular Homicide by Disregard under RCW 46.61.520(1)(c).  At sentencing, the State recommended 17 months of incarceration.  However, Stately argued she was entitled to a first-time offender waiver under former RCW 9.94A.650 because her crime was not defined as a violent offense.

The trial court agreed.  Stately was sentenced under the first-time offender waiver to 30 days of incarceration, 12 months of community custody, and 4,000 hours of community restitution (community service).

For those who don’t know, a “first-time offender” is any person who has no prior felony convictions.  At sentencing, the court may waive the imposition of a sentence within the standard sentencing range.  The sentence imposed under the first-time offender provision is not an exceptional sentence but is, rather, a waiver of the standard sentence range.

On appeal, the Prosecution argued that Stately was not eligible for a first-time offender waiver because she committed a violent offense.

However, the Court of Appeals thought different.  It reasoned that there are three types of vehicular homicide, all currently class A felonies.  Subsection (xiv) lists the first two types, homicide by intoxication and recklessness, but does not include the third type, homicide by disregard.  Former RCW 9.94A.030(50)(a)(xiv).

The court further reasoned, “If we read the statute to define Vehicular Homicide by Disregard as a violent offense simply because it is a class A felony, then subsection (xiv) would be superfluous.  We presume, however, that the legislature does not include superfluous language and we interpret statutes to give meaning to each section.

Here, it is impossible to harmonize the statute’s terms in subsection (i) with its terms in subsection (xiv).  The later subsection, relating specifically to vehicular homicide, is more specific than subsection (i), which relates generally to all class A felonies.  Applying the specific-general doctrine, the specific terms of subsection (xiv) prevail and Stately’s Vehicular Homicide by Disregard conviction is not a violent offense”  (emphasis supplied).

My opinion?  Again, excellent decision.  It’s pleasing when our legal system takes an academic approach to cases by methodically reviewing the WORDING and LEGISLATIVE INTENT of statutes.  Fortunately, that’s exactly what happened here.  The court avoided a huge miscarriage of justice by refusing to allow the general rule of “violent offense” swallow legislative exceptions to the rule.

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.

Seattle v. St. John: Police May Obtain a Search Warrant For a Blood Sample When Motorists Refuse to Give Breath Test.

Blood Test, Constitutional Rights, Drug Offenses, Due Process, DUI, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Can I Refuse A Blood Test? - Welch and Avery

In Seattle v. St. John, the WA Supreme Court held that police may obtain a search warrant for a blood sample when motorists refuse to give a breath test.

After crashing his motorcycle in Seattle, Robert St. John was investigated for DUI. A police officer asked St. John to consent to a blood alcohol test.  St. John refused.   The officer obtained a warrant for the test.  The results were suppressed in municipal court based on a broad interpretation of a provision of the Implied Consent Law that prohibits performing the test once consent has been refused. The superior court reversed and the Court of Appeals certified three questions to the Supreme Court:

1. Does the implied consent statute allow the State to administer a blood alcohol test pursuant to a warrant after a driver has declined a voluntary blood alcohol test?

2. Does an implied consent warning violate due process if it does not inform drivers that an officer may seek a warrant for a blood alcohol test even if the driver declines the voluntary blood alcohol test?

3. Does the doctrine of equitable estoppel bar the State from seeking a warrant for a blood alcohol test after informing drivers that they may refuse the voluntary blood alcohol test?

The WA Supreme Court upheld the superior court and allowed the blood test evidence.  They reasoned that the Implied Consent law restricts performing a blood test pursuant to that law, but does not prohibit performing a blood test pursuant to a lawfully issued warrant (RCW 46.20.308). Similarly, the officer’s statements about the Implied Consent law did not foreclose his obtaining the warrant.

I echo the dissenting opinion of Justice Charles Sanders.  Simply put, an officer cannot force a driver to submit to a blood test if the driver refuses consent.  However, under the majority opinion’s reasoning, a driver’s refusal to consent to a Breath test is essentially meaningless.

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. Kyllo: When It Makes Sense, Argue Self Defense

Assault, Constitutional Rights, Due Process, felony, Ineffective Assistance, Jury Trial, Self-Defense, Violent Crime, Washington Court of Appeals, Washington Supreme Court, , ,

Undercover inmate describes violence in jail

In State v. Kyllo the WA Supreme Court held that the  jury instruction misstated the law on Self-Defense. Moreover, the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured.

On June 12, 2004, while an inmate at the Cowlitz County jail on other charges, Mr. Kyllo was involved in a fist fight with another inmate during the course of which Kyllo bit the other inmate’s ear off. Kyllo was charged with second degree assault and he claimed he acted in self-defense.

At trial, Defense counsel proposed a self-defense jury instruction that stated:

A person is entitled to act on appearances in defending himself, if that person believes in good faith and on reasonable grounds that he is in actual danger of great bodily harm, although it afterwards might develop that the person was mistaken as to the extent of the danger. Actual danger is not necessary for the use of force to be lawful.

Kyllo was convicted on the charge of second degree assault. On appeal, he asserted ineffectual assistance of counsel, arguing that the instruction above improperly lowered the State’s burden of proof. The Supreme Court agreed, with Justice Barbara Madsen writing a unanimous opinion.

The Court held that the jury instruction misstated the law, and that the jury should have been informed that a person is entitled to act in self-defense when he reasonably apprehends that he is about to be injured — “One is not required to believe he is about to be grievously harmed or killed.”

The Court held that Kyllo was denied effective assistance of counsel, and remanded the case for a new trial.

My opinion?  Excellent decision.  Reminds defense attorneys to stay cognizant of the jury instructions they provide.  For those who don’t know, a jury instruction is an instruction given by the court to a jury at the conclusion of presentation of all evidence in a trial, and after the lawyer’s closing arguments, to advise the jury of the law that applies to the facts of the case, and the manner in which they should conduct their deliberations.  The attorneys prepare the instructions.

Here, the defense attorney gave the “Acting on Appearances” instruction.  The instruction presents a good starting point for the circumstances surrounding this particular case (Convict A is mad-dogging Convict B, Convict B attacks Convict A first  — and acting on Convict A’s appearances — because he believes Convict A will attack and get the advantage of surprise).  Unfortunately, the instruction, by itself wasn’t enough.

As a matter of practice, I believe both a self defense instruction AND and “Acting on Appearances” instruction work best in combination with each other.  Speaking from my own trial experience, everyone on the street embraces self defense.  It allows us to fight back when we’re attacked.  Simple.

However, the soft-spoken pacifists out there (who are INCREDIBLY hard to spot at jury selection) are downright offended by the “Acting on Appearances” instruction.  Many juries simply cannot promote violence beyond the context of self defense.  Yet even a pacifist will fight to save their own life.

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. Engel: WA Supreme Court Reversed Overly Broad Burglary Conviction

Burglary, Constitutional Rights, Due Process, felony, Jury Trial, Property Crimes, United States Supreme Court, Washington Court of Appeals, , ,

118 Fence Ideas and Designs - Different Types With Images

In State v. Engel, the WA Supreme Court ruled that a man suspected of stealing aluminum auto wheels from a rural business wasn’t guilty of committing Burglary in the Second Degree — an extremely serious felony — because the property wasn’t fenced on all sides.

Roger Engel was convicted of second-degree burglary after stealing some wheels from a large private yard that was partially enclosed by a fence and partially bordered by sloping terrain. Burglary in the second degree requires entering or remaining in a “building.” RCW 9A.52.030. A “building” is defined to include a “fenced area.” RCW 9A.04.110(5). Engel challenged his conviction, claiming the yard was not a “fenced area” under the statute.

The business premises Engel entered covered seven or eight acres and included several buildings and a large yard. The entrance to the property was gated. One-third of the property, including the side fronting the road, was fenced by chain link fence with barbed wire on the top.

However, the rest of the property was not fenced, including the edge of the property near the stock piles. Beyond the gravel piles was is a “pretty sizeable drop-off, a hill that goes down.” Two-thirds of the property was encased by ‘banks, high banks, [and] sloping banks.” Directly adjacent to the property was a separate business, but no fence or gate separated the two properties.

The Supreme Court agreed with Engel’s argument, with Justice James Johnson writing the unanimous opinion. “Upholding an overly broad definition of ‘fenced area’ would extend criminal liability beyond what is warranted by the plain language of the statute, as understood in the context of the common law.

Therefore, the Court of Appeals decision affirming Engel’s conviction is reversed and the case is remanded with instructions to vacate the conviction and dismiss the charge.”

My opinion?  I wholeheartedly agree with the WA Supremes for two reasons.  First, under the state’s interpretation of “Burglary,” would-be petty criminals who trespass might be liable for burglary even if the property line at their point of entry were unfenced and unmarked, even if they remained on the property without approaching any buildings or structures, and even if the property were such that they could enter and remain without being aware that it was fenced.  These kinds of examples are well outside the category of offenses the legislature intended to punish as burglary.

Second, Burglary is a serious crime with serious consequences. An arrest and conviction for a residential burglary, or any other property crime, can be a life-changing event that may result in penalties such as mandatory state prison time. Residential burglaries have reached epidemic proportions in many communities and courts are routinely handing out stiff penalties, even to first time offenders.

Again, good 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. Hinshaw: Absent Exigent Circumstances, Cops Can’t Enter Your Home Without a Warrant & Arrest for DUI

911 Call, Constitutional Rights, Corpus Delicti, Due Process, DUI, Exigent Circumstances, Jury Trial, law enforcement, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

EXIGENT CIRCUMSTANCES | Austin Criminal Defense Lawyer

Great opinion.

In State v. Hinshaw, the WA Court of Appeals held that absent Exigent Circumstances, police cannot enter a home without a warrant & arrest for DUI.

Here, the Moses Lake Police investigated reports of a car unlawfully driving on a bike path.  Police search the path.  They find Mr. Hinshaw on a bike close to the path.  He said he was a passenger in the suspect car, but denies driving.  They release him.

Later, the police find the suspect car in his driveway.  It had a flat tire.  They knock on the door.  He answers the door, yet refuses to come out.  He admits to drinking earlier.  Officers grab his arm, go inside of his home, and arrest him for DUI.  They are concerned his BAC level was dissipating.

The Court of Appeals rejected the State’s argument that “exigent circumstances” justified Mr. Hinshaw’s warrantless seizure.  The Court saw several errors in the police officer’s conduct.   First, the officers failed to establish how quickly the BAC would/could dissipate.  Second, the officers could not estimate how long it would take to get a warrant.

Third, although the police had probable cause to believe Mr. Hinshaw became intoxicated and drove home, the reckless operation of the car and consequent threat to public safety had ended.  Mr. Hinshaw was neither armed nor dangerous.  He posed no threat to the public or officers.  His car was disabled.  Consequently, exigent circumstances did not exist.

My opinion?  Great opinion!  The Court of Appeals saw through the State’s smoke and mirrors.  This was not a case about exigent circumstances.  An emergency never existed!  No, this was a bona-fide; unlawful exercise of “arrest first, ask questions later” on the part of the police.  Clearly unlawful.  Kudos to the Court of Appeals.

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. Carneh: Why Defense Attorneys Should Seek Dismissals WITH Prejudice

Dismissal, Washington Court of Appeals, , ,

Dismissed with Prejudice – The Civilian

In State v. Carneh, the WA Court of Appeals decided the Prosecution could refile charges on a defendant after previously dismissing the case without prejudice. 

Typically, prosecutors dismiss cases in one of two ways: with prejudice, or without prejudice.   Dismissing a case with prejudice means prosecutors cannot refile future charges against the defendant.  However, dismissing  without prejudice means the prosecutor may, in the future, refile charges at time if (1) statute of limitations has not expired, (2) jurisdiction still exists, and (3) prosecutors develop substantial probable cause to refile. 

In this case, the State charged Carneh with four counts of aggravated murder in March 2001.  After extensive and periodically successful competency restoration treatment, the trial court ultimately dismissed the case without prejudice because it found Carneh was incompetent to stand trial at that time.  The State refiled charges after learning that Carneh had shown signs of improvement.  The trial court ordered further competency restoration.

RCW 10.77.086 provides that if competency restoration efforts are ultimately unsuccessful, “the charges shall be dismissed without prejudice, and either civil commitment proceedings shall be instituted or the court shall order the release of the defendant.”  After a trial court dismisses charges without prejudice pursuant to this statute, it loses the criminal jurisdiction and with it the authority to order competency evaluation or restoration.  But the statute reserves the prosecutor’s ability to refile charges and makes clear that the bar against trying incompetent defendants lasts only so long as such incapacity continues.

The prosecutor’s ability to refile is not unfettered; rather, the prosecutor must have a good faith basis to believe that competency has or will likely be restored.  In this case, the prosecutor received a letter from Western State Hospital indicating that Carneh’s condition had improved.  The letter was sufficient good faith basis to refile.  The trial court thereby reacquired criminal jurisdiction and with it the authority to order further competency restoration.  Ouch!!

My opinion?  Division II made a painfully reasonable  decision.  Competent defense attorneys should know that prosecutors may refile charges at any time if a case is dismissed without prejudice.  The remedy?  Whenever possible, defense attorneys should seek dismissals with prejudice. 

True, our knee-jerk reaction is, quite simply, to take a dismissal in any form or fashion.  We’re grateful to get them for our clients, and nobody wants to look a gift horse in the mouth.   Still, a dismissal without prejudice obviously comes with strings attached.  Indeed, worst-case scenario like State v. Carneh could arise. 

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. Ramos: Excellent Separation of Powers Case

Constitutional Rights, Due Process, felony, Legislation, Sex Crimes, Washington Court of Appeals, , ,

Theory Of Separation Of Powers - Political Science

In State v. Ramos, the defendant was convicted in 1993 of sexual exploitation of a minor.  At the time, Washington did not require sex offenders to register with the State.   The law was changed after Ramos’ release and he registered in 2001.  The law changed again to require Level II sex offenders to report in person every 90 days.  Ramos failed to do so.  he was prosecuted for failing to report.

The WA Court of Appeals held that the authority to define crimes and set punishments rests squarely with the legislature.  Not the prosecutor, not the sheriffs, but the legislature.  It reasoned it is unconstitutional for the legislature to transfer its power to others.  Because the sex offender reclassification statute does not provide any guidance to local law enforcement agencies, Ramos’ delegation was improper, and his conviction cannot stand.

My opinion?  Great decision.  It reaffirms the debate regarding the wrongful  application of newly formed criminal laws.  In Washington, defendants can only be charged with violating laws in existence  at the time of arrest.  Unless a newly formed statute specifically provides for retroactive application, defendants cannot be found to have violated the new statute.  It isn’t fair.  Unconstitutional.  Again, great decision.

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

State v. Dingman: Trial Court Erred in Denying Defendant’s Discovery Requests

Constitutional Rights, Discovery, Due Process, felony, Forensics, Jury Trial, Pretrial Investigations, Search and Seizure, Theft, Washington Court of Appeals, , ,

What Is A Discovery Request? Texas Rules of Civil Procedure

In State v. Dingman, the WA Court of Appeals Court held the State is obligated to disclose all tangible objects in its possession which were obtained from or belonged to the defendant at the time of arrest.

Here, the authorities seized Mr. Dingman’s computers while investigating him for Theft and Money Laundering.  The State created mirror image copies of the computers’ hard drives using a program called EnCase.  Dingman asked for direct access to his computer.  The Court refused, and instead ordered copies be provided using Encase, a program the defense neither had not knew how to use.

Applying court rules/procedures, the WA Court of Appeals Court held the State is obligated to disclose all tangible objects in its possession which were obtained from or belonged to the defendant.  The computer hard drives were tangible objects obtained from the defendant.  Defense counsel should be allowed to examine the hard drives.  Therefore, it was error not to give the defense access to the hard drives.

My Opinion?  Great decision. Division II gave an excellent decision regarding the violation of a defendant’s right to review evidence. The defendant should ALWAYS have access to materials the prosecutor wants to use at trial.  Indeed, it’s a blatant violation of a defendant’s Constitutional rights to deny access.  Providing evidence to the other side is also, quite simply, a professional courtesy.

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. Brooks: WA Court Rightfully Dismisses Criminal Charges Because Prosecution Withheld Evidence

Constitutional Rights, Discovery, Dismissal, Due Process, Evidence, felony, Jury Trial, Prosecutorial Misconduct, Washington Court of Appeals, , ,

Prosecutorial Misconduct / Mishaps In FCPA Cases - FCPA Professor

In State v. Brooks, the WA Court of Appeals dismissed a criminal case due to prosecutorial mismanagement and withholding  of evidence.

My opinion?  It’s about time!  The prosecutors, God bless ’em, usually have the upper hand with judges.   Typically, judges won’t sanction prosecutors or dismiss cases due to prosecutorial misconduct, mismanagement, or withholding of evidence (trust me, I’ve tried).

This opinion opens the door for judges to exercise more discretion in dismissing poorly managed cases.  In this case, the prosecutor withheld a a 60-page victim statement from the defense until the day of trial.   Unbelievable!

Imagine this: your attorney has geared up for trial.  They agonizingly prepped the case from start to finish.  Attorney has their theme, theory, motions in limine, opening statement, closing statement, voir dire questions, direct exam questions, and cross exam questions fully prepared before entering the court.  All of the sudden, prosecutor plops a huge pamphlet of papers in front of defense attorney’s face.

“Sorry you have no time to review this new statement, but go ahead and cross examine my witness on this.”  Unbelievable.  We have no idea what the statement contains.  If admitted to evidence, this unread statement could, by itself, utterly throw your case theory out the window.

The Court of Appeals has boldly decided these “Hide the Ball” shenanigans are going to get cases dismissed.  That governmental mismanagement materially affects a defendant’s right to a fair trial.  Good.  I understand that prosecutors work hard.  Their caseloads are huge.  But hey, let’s be real, people’s lives and liberty are at stake.  Constitutional rights are at risk.  Consequently, cases should be dismissed when poorly handled and/or mismanaged.

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.