Category Archives: Washington Supreme Court

State v. Quaale: WA Supreme Court Upholds WA Court of Appeals & Grants Mistrial Due To Trooper’s Opinion Testimony

Constitutional Rights, Drug Recognition Expert, Due Process, DUI, Evidence, Jury Trial, law enforcement, misdemeanor, police, Terry Stop, Uncategorized, Washington Court of Appeals, Washington State Patrol, Washington Supreme Court, , ,

Lay Witnesses and Opinion Testimony: Admissible?

Excellent opinion from the WA Supreme Court. In State v. Quaale, the WA Supreme Court decided that a Washington State Trooper’s opinion testimony regarding the defendant’s sobriety violated the defendant’s rights at trial.

Trooper Stone pulled the defendant Ryan Quaale over for Eluding and DUI. Trooper Stone then performed the Horizontal Gaze Nystagmus Test (HGN test) on Quaale.

Some explanation of the HGN test is necessary. The HGN test is a routinely used field sobriety test in which the administrator tells the subject to follow a pen or fingertip with his or her eyes as the administrator moves the stimulus from side to side. After consuming alcohol, a person will have difficulty smoothly following the stimulus; the person’s eyes will jerk or bounce as they move from side to side.

For those who don’t know, “Nystagmus” is this very involuntary oscillation of the eyeballs – the jerking – which results from the body’s attempt to maintain orientation and balance. HGN is the inability of the eyes to maintain visual fixation as they turn from side to side or move from center focus to the point of maximum deviation at the side.

Here, Trooper Stone testified that in his opinion, the HGN test is very important to determining impairment because, unlike the walk the line test, which a person can practice, the HGN test measures an involuntary reflex. Trooper Stone did not perform any other sobriety tests on Quaale in the field.

During the HGN test, Trooper Stone observed Quaale’s eyes bounce and have difficulty tracking the stimulus. Trooper Stone placed Quaale under arrest for DUI, Reckless Driving, and Attempting to Elude. At the station, Trooper Stone informed Quaale of the implied consent warnings for a breath test. Quaale refused to take the test. Quaale was charged with Attempting to Elude a police vehicle and with Felony DUI. The DUI was charged as a felony because Quaale had been previously convicted of Vehicular Homicide While Under the Influence. RCW 46.61.502(6)(b)(i).

Quaale was tried twice. At the first trial, the jury convicted him of attempting to elude but could not agree on a verdict for the DUI charge. During a second trial on the DUI charge, the State concluded its direct examination of Trooper Stone with the following questions:

Q. In this case, based on the HGN test alone, did you form an opinion based on your training and experience as to whether or not Mr. Quaale’s ability to operate a motor vehicle was impaired? [Defendant’s objection that the question goes to the ultimate issue is overruled]
Q …. Did you form an opinion?
A. Absolutely. There was no doubt he was impaired.

The WA Supremes reasoned that Trooper Stone’s testimony that he had “no doubt” the defendant was impaired was an improper opinion on the defendant’s guilt and therefore inadmissible. Trooper Stone based his opinion solely on a HGN test, which can indicate physical signs consistent with alcohol consumption. The test, however, cannot establish impairment by itself, and testimony to the contrary violates the limitations imposed by the Supreme Court’s decision in State v. Baity.

An explanation of State v. Baity is necessary. In Baity, the WA Supreme Court considered whether drug recognition protocol employed by police officers to detect behavior associated with certain drugs constituted novel scientific evidence generally accepted in the scientific community, satisfying the Frye test for admissibility of expert testimony.  Police officers trained to use this protocol are often referred to as Drug Recognition Experts (DREs).

DREs use a 12-step procedure to classify behavioral patterns associated with seven categories of drugs. Officers employ the HGN test as one ofthe 12 steps. In Baity, the Court analyzed whether the HGN test satisfied Frye when used for drug detection. The Court held that it did. It reasoned that the underlying scientific basis of the test-an intoxicated person will exhibit nystagmus was undisputed. T

he Court also noted that officers perform the test in the same way whether the officer tests for alcohol or drug impairment and that the officer also looks for the same result: involuntary jerking in the driver’s eyes. Thus, the Court’s analysis of the HGN test in the DUI drug detection context, as discussed in Baity, applies equally to the DUI alcohol detection context in this case.

Although the Baity Court heard testimony on the HGN test admissible as evidence that a person was intoxicated on drugs, the Court also placed limits on that testimony because the HGN test merely shows physical signs consistent with ingestion of intoxicants. The Court said that an officer may not testify in a manner that casts an “aura of scientific certainty to the testimony.”

The officer also cannot predict the specific level of  drugs present in a suspect.  Furthermore, the Baity court held that a DRE officer, properly qualified, could express an opinion that a suspect’s behavior and physical attributes are consistent or inconsistent with those behaviors and physical signs associated with certain categories of drugs.

With that background, the Quaale Court reasoned that the Trooper’s testimony that Quaale was “impaired” parroted the legal standard contained in the jury instruction definition for “under the influence.” The word “impair” means to “diminish in quantity, value, excellence, or strength.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 1131 (2002).

Thus, the trooper concluded that alcohol diminished Quaale in such an appreciable degree that the HGN test could detect Quaale’s impairment. Because the Trooper’s inadmissible testimony went to the ultimate factual issue-the core issue of Quaale’s impairment to drive-the testimony amounted to an improper opinion on guilt.

With that, the WA Supremes affirmed the Court of Appeals, reversed the judgment and sentence, and remanded Mr. Quaale’s case for a new trial.

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. W.R.: Defendants Do NOT Need to Prove Consent in Rape Cases

Assault, Constitutional Rights, Evidence, felony, Rape, Self-Defense, Washington Supreme Court, , ,

9th Circuit Affirms TCPA Consent Defense

In State v. W.R, J.R., the WA Supreme Court held that it violates due process to make the defendant prove the alleged sexual act in question was consensual when the crime charged is Rape in the Second Degree by Forcible Compulsion.

The defendant, a minor named W.R., was found guilty at his bench trial of Rape in the Second Degree by Forcible Compulsion. The event in question was a sexual encounter between W.R. and J.P. that occurred on January 2, 2011, while J.P. was visiting her aunt, who resided with W.R. and his sister. J.P. was also a minor at the time.

Throughout trial, the juvenile court judge found W.R. lacked credibility. Consequently, the court explained that the State had proved rape in the second degree beyond a reasonable doubt and that W.R. had failed to prove the defense of consent by a preponderance of the evidence.

W.R. appealed, arguing the juvenile court erred in allocating to him the burden of proving by a preponderance of the evidence that the act was consensual.

The WA Supreme Court granted review of the case on this one issue: When the State charges the defendant under a rape statute that includes “forcible compulsion” as a necessary element of the crime, does due process forbid requiring a criminal defendant to prove consent by a preponderance of the evidence?

The court reasoned that once a defendant asserts a consent defense and provides sufficient evidence to support the defense, the State bears the burden of proving lack of consent as part of its proof of the element of forcible compulsion. It analyzed the decision in State v. Camara and other cases which applied a “negates” analysis. In short, the Court held that when a defense necessarily negates an element of the crime, it violates due process to place the burden of proof on the defendant. It stated, “The key to whether a defense necessarily negates an element is whether the completed crime and the defense can coexist.”

Furthermore, the court said other courts have recognized that when a person consents to sexual intercourse, such consent negates forcible compulsion. In addition, the defendant cannot be burdened with proving consent by a preponderance of the evidence, as the burden must remain on the State to prove forcible compulsion beyond reasonable doubt.

We hold that consent necessarily negates forcible compulsion. For this reason, due process prohibits shifting the burden to the defendant to prove consent by a preponderance of the evidence. While the defendant may be tasked with producing evidence to put consent in issue, such evidence need only create reasonable doubt as to the victim’s consent. Our prior decisions in Camara and Gregory are inconsistent with this holding; we thus must explain why these cases must be overruled.

My opinion? Good decision, on many levels. It’s satisfying that the WA Supremes overruled bad caselaw and reasoned their way back to the one of the oldest standards in American jury trial jurisprudence: it is the State, and not the defendant, who carries the burden. Making the defendant carry this burden violates due process.

Although it appears Camara and Gregory tried to carve out an exception to this general rule in much the same way a defendant must prove self-defense by a preponderance of the evidence if charged with Assault, making a defendant prove consent in rape and sex cases is far too difficult to prove. This is especially true when the Rape-Shield statute suppresses information about a victim’s past sexual history. Good decision, WA Supremes.

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.

Unlawful Frisking Violates Constitutional Rights

Constitutional Rights, Drug Offenses, felony, Firearm, law enforcement, Methamphetamine, police, Privacy, Search and Seizure, Terry Stop, Uncategorized, Washington Supreme Court, , ,

Austin PD defends officer who stopped and frisked woman in video

Good case. In State v. Russell, the WA Supreme Court held that the warrantless search of a small container found on the defendant’s body exceeded the proper scope of a pat-down search under the guise of a “protective frisk for weapons” during a Terry Stop.

The defendant Mr. Russell was stopped for violating several minor traffic laws. The officer recognized Russell from a prior stop. Although the Mr. Russell told officers he was not armed, he did, in fact, have a small pistol in his pocket. The officer frisked Mr. Russell for weapons. The officer felt a small box in Russell’s pants. The box was did not weigh any significant amount, and the officer had no idea whether the box contained a weapon. The officer opened the box. It contained a syringe filled with methamphetamine. The defendant was arrested for Possession of Meth.

The trial court granted Mr. Russell’s motion to suppress the evidence and dismiss the case. However, the WA Court of Appeals reversed the trial court’s decision on appeal. Eventually, the case found its way to the WA Supreme Court.

The WA Supreme Court ruled that although the initial protective frisk was permissible, the officer violated Russell’s constitutional rights when he removed a small container from his pocket and searched it without a warrant. The officer admitted that the container’s contents weighed only a fraction of what a pistol weighs. Because the officer did not have a reasonable belief that the container housed a gun, the warrantless search was not justified.

Furthermore, the Court reasoned that any threat to the officer’s safety ended when he took control of the container. He did not have authority to search it while investigating traffic infractions. Finally, the WA Supreme Court  held that the search was not justified on the basis of consent because the State did not show that Russell consented to the search. For these reasons, the WA Supremes reversed the Court of Appeals.

My opinion? Great decision. Under the law, officers can only search for “hard and sharp” objects which might be used as weapons. Anything else they find is “fruit of the poisonous tree” under an unlawful search. Again, good decision.

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

State v. Finch: Can Defendants Force Victims to Get Polygraph Tests?

Assault, Discovery, Polygraph, Pretrial Investigations, Rape, Washington Supreme Court, , ,

Can A Pregnant Woman Take A Polygraph Test?

In State v. Finch, the WA Supreme Court ruled that a rape victim’s polygraph test is inadmissible at trial.

The defendant was accused of raping a juvenile. Defense counsel obtained a court order commanding the alleged victim to obtain a polygraph test. The polygraph questions centered around what exactly happened on the day of the alleged rape incident.

The WA Supreme Court held that the trial court wrongfully granted the Defendant’s request to order the victim to take a polygraph test. The court reasoned there is no factual basis under CrR 4.7 – basically, the discovery rule – making it reasonably likely that the disputed polygraph test results would provide information material to the defense.

The Court based its decision on three grounds. First, polygraph tests are inadmissible at trial unless all parties agree. Here, the State did not want to stipulate to admitting the victim’s polygraph. Second, the State would not dismiss the charges against the defendant even if the victim failed the polygraph because there would be a “disputed issue of material fact” regarding the polygraph’s reliability (CrR 8.3). Third, the polygraph test results would only provide the defendant with highly unreliable information.

The Court concluded that the negative emotions that accompany being a sex crime victim, such as stress, anxiety, and fear, can further compromise the reliability of an already unreliable polygraph test by distorting the results and creating false positives.

My opinion? Good decision. The biggest problem with polygraph tests is that there are no known physiological responses that directly correspond with deception. An examinees physiological responses is often governed by whether the examinee believes the test is accurate, and from the atmosphere created by the examiner.

Furthermore, external stimuli may cause a change in physiological responses, such as a surprising question or a noise outside the room. Likewise, stress, anxiety and fear – all controlled by the autonomic nervous system – cause changes in the physiological responses of an examinee.

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. Lindsay: When Attorneys Act Unprofessionally

Assault, Burglary, Firearm, Kidnapping, Prosecutorial Misconduct, Robbery, Rules of Professional Conduct, Theft, Washington Supreme Court, , ,

I'll Have Your Rear End Sanctioned': Insurance Defense Lawyer Spars With Plaintiff, Opposing Counsel | Daily Business Review

In State v. Lindsay, the WA Supreme Court reversed a defendant’s conviction because the lawyers engaged in unprofessional behavior, trading verbal jabs and snide remarks throughout the proceedings in this case.

The defendants were charged with Robbery, Burglary, Kidnapping, Assault and Theft of a Firearm. The jury convicted them of some, but not all counts. The WA Supreme Court reasoned that although the trial court attempted to maintain civility, the magnitude of the problem, which spilled into the prosecutor’s closing argument, requires reversal. In short, a prosecutorial misconduct involves a two-part inquiry: (1) whether the prosecutor’s comments were improper, and (2) whether tjhe improper comments caused prejudice.

The court noted that although the conflict from both the Prosecutor and Defense Counsel seemed mutual and both attorneys were at fault, Prosecutors are held to a higher standard of conduct. Additionally, some of the Prosecutor’s hijinks at Closing Argument required reversal of the conviction. For example, the Court noted that Prosecutors may not refer to defense counsel’s closing argument as a “crock.” These comments impugn Defense Counsel, and imply deception and dishonesty. The Prosecutor also said that the defendant Holmes’s testimony was “funny,” “disgusting,” “comical,” and “the most ridiculous thing I’ve ever heard.”

Additionally, the Prosecutor’s attempts at coupling the jigsaw puzzle analogy with a percentage of missing pieces in the defense attorney’s case was also reversible error. Moreover, comparing the reasonable doubt standard to the decision made at a cross-walk is error. In addition, telling the jury that its job is to ‘speak the truth,’ or some variation thereof, misstates the burden of proof and is also improper.

A prosecutor’s stating that a witnesses’ testimony is “the most ridiculous thing I’ve ever heard” is an improper expression of personal opinion as to credibility. Finally, a prosecutor’s behavior in whispering to the jury is improper, highly unprofessional and potentially damaging to the fairness of the proceedings.

My opinion? The WA Supremes made a good decision. Practicing law is hard. Conducting jury trials is very hard. Now imagine dealing with another attorney’s unprofessional conduct during trial. Unbelievable! Yes, these instances of misconduct happen. I speak from experience when I say it’s easy to get sucked into malicious and negative behavior, especially when attorney’s advocate in the heat of battle.

Nevertheless, Section 3.4 of Washington’s Rules of Professional Conduct require that attorneys be civil toward one another and the tribunal. It’s incredibly difficult for judges to analyze the legal issues over the furor of shouting attorneys. And it hurts the credibility of the entire legal institution when our citizens see us behaving badly. My heart goes out to the lawyers involved in the case. Hopefully, they worked out their differences.

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. Roden: Text Messages Are Protected by Washington’s Privacy Act

Constitutional Rights, Drug Offenses, felony, law enforcement, police, Privacy, Search and Seizure, Search Warrant, Washington Supreme Court, , ,

Washington Privacy Act: Amendments jeopardize protections for consumers | The Seattle Times

Good opinion.

In State v. Roden, the WA Supreme Court ruled that Washington’s Privacy Act is violated by an officer’s warrantless opening, reviewing, and responding to text messages sent to a suspect’s phone, before the suspect viewed the message.

In State v. Roden, Daniel Lee was arrested for possession of heroin. After the arrest, a police detective spent 5 to 10 minutes browsing through Lee’s cell phone. The detective noticed several text messages from Jonathan Roden. The detective arranged a drug deal with Roden via text messages. Roden was arrested for Attempted Possession of Heroin. The trial court denied Roden’s motion to suppress and found Roden guilty. On appeal, Roden argued that the detective’s conduct violated Washington’s Privacy Act.

The Washington Supreme Court agreed with Roden. It reviewed  the Privacy Act act and analyzed the following excerpt in pertinent part: “[I]t shall be unlawful for … the state of Washington, its agencies, and political subdivisions to intercept, or record any: (a) Private communication transmitted by telephone, telegraph, radio, or other device between two or more individuals between points within or without the state by any device electronic or otherwise designed to record and/or transmit said communication regardless how such device is powered or actuated, without first obtaining the consent of all the participants in the communication.”

Furthermore, RCW 9.73.050 declares that evidence obtained in violation of the act is inadmissible for any purpose at trial.

Against this backdrop, the court gave the four-part analysis under State v. Christensen to be considered when analyzing alleged violations of the privacy act. There must have been (1) a private communication transmitted by a device, which was (2) intercepted or recorded by use of (3) a device designed to record and/or transmit ( 4) without the consent of all parties to the private. Roden stated the communications in the text message were intended to be private when intercepted by the detective posing as Lee.

Applying those factors, the Court reasoned that Washington’s privacy act was violated because the detective intercepted private communications without Lee’s or Roden’s consent or a warrant.

My opinion? Good decision. In my experience, this type of situation happens quite often. It’s entrapment, plain and simple. And it  violates a defendant’s rights in the process. Contact an experienced criminal defense attorney if you’re facing similar circumstances. Your privacy matters!

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. Ollivier: What Happens When the Defense Attorney Wants a Continuance and the Defendant Doesn’t?

Constitutional Rights, Discovery, Pretrial Investigations, Speedy Trial & Continuances, Washington Supreme Court, , ,

How to Write a Letter for Not Being Able to Attend Court

In State v. Ollivier, the WA Supremes held that a defendant’s speedy trial rights were NOT violated when a defendant’s attorney requested the continuance over the objection of his client. The facts were such that the defendant, Ollivier, was charged with Possession of Depictions of Minors Engaged in Sexual Activity. The depictions involved the use of the defendant’s computer. Ollivier was arraigned on April 18, 2007. His case went pending for 5 years before finally going to trial.

There were, in total, 22 continuances. The reasons for the continuances varied: defense counsel sought most of the continuances to allow time for investigation, obtain expert review of computer content, obtain discovery material from the Washington State Department of Corrections and the King County Sheriff’s Office, and because of a new investigator on the case.

Some of the requested continuances mentioned circumstances involving the State and some motions were joined by the State. At one point, an arresting officer resigned. Consequently, a continuance was requested to allow time to investigate her misconducts.

The Court reasoned that, in order to establish that multiple continuances of Ollivier’s trial dates violated his constitutional right to trial, a defendant must establish actual prejudice to the ability to prepare a defense. Further, prejudice will only be presumed in extremely unusual cases in which the post-indictment delay lasted at least five years or the government was responsible for the delay by virtue of something beyond simple negligence.

Finally, the Court stated the following: “Nearly all of the continuances were sought so that defense counsel could be prepared to defend. This is an extremely important aspect of the balancing and leads us to conclude that the length of delay was reasonably necessary for defense preparation and weighs against the defendant.”

My opinion? I agree with the WA Supremes. I’ve conducted MANY jury trials in my career, and shall probably conduct many more. Although few, my trial losses typically happen when clients insist on going to trial too early, and usually against my advice.

It’s important for clients and attorneys to have frank discussions of how long it will take to resolve the case. This decision usually depends on whether the client wants to resolve the case or go to trial. And THAT decision usually rests on the evidence contained within witnesses, police reports, forensics, etc. These decisions are not easy. It takes an exorbitant amount of time, preparation and patience for all parties to fashion and execute a successful trial defense. But as the old saying goes, “Cooler heads will prevail.”

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. Saintcalle: The WA Supreme Court’s Recent Ruling on Race Discrimination in Our Criminal Justice System

Constitutional Rights, Homicide & Manslaughter, Race & Law, Washington Supreme Court, , ,

That a man was tried six times for the same crime is remarkable enough.

In State v. Saintcalle, the WA Supreme Court addressed an interesting case regarding peremptory strikes against potential black jurors.

The defendant Kirk Saintcalle, a black man, was charged with Felony Murder in the First Degree. At trial, the State’s prosecutor used a peremptory challenge to strike the only black person in the jury pool. He was found guilty by a jury. On appeal, Saintcalle claimed the strike was racially motivated in violation of the U.S. Supreme Court’s Batson v. Kentucky, 476 U.S. 79 (1986).

The WA Supreme Court disagreed and agreed with Saintcalle. They disagreed with Saintcalle to the extent that the Prosecutor’s peremptory striking of the only African-American juror in this case did not give rise to a Batson violation. However, the majority agreed that Washington’s Batson procedures were not strong enough to effectively combat race discrimination in the selection of juries.

Justice Wiggins also stated our Batson procedures must change so as to deal with unconscious, institutional, or unintentional racism, however, “[T]his is not the case in which to announce a new standard.” Saintcalle’s conviction was upheld.

Chief Justice Madsen’s concurrence, which was signed by Justice Jim Johnson, also expressed her concern about racial discrimination during jury selection. She would not adjust Batson or do away with peremptory challenges in an attempt to address nonpurposeful discrimination based on race during jury selection. Chief Justice Madsen also took issue with Justice Wiggins’ charts and graphs that compared the prosecutor’s questioning of the African-American juror to the prosecutor’s questioning of other jurors.

Justice Stephens’ concurrence, which was signed by Justices Fairhurst and Charles Johnson, “sound[s] a note of restraint amidst the enthusiasm to craft a new solution to the problem of the discriminatory use of peremptory challenges during jury selection.”

Justice González’s concurrence calls for the immediate abolishment of peremptory challenges.

Justice Chambers dissented.

My opinion? I’ve heard that getting attorneys to agree to something – and judges, for that matter – is akin to trying to herd cats. Clearly, State v. Saintcalle  captures the “herding cats” imagery. The smattering of different opinions by our justices captures the complexity of racism in our judicial system. Some see it.  Some don’t. Others call it something else.

Although I’m saddened the WA Supremes passed on an opportunity to capture a racist act and make an example of it, I’m happy they said Washington needs to have stronger procedures and standards in place to stop these situations from happening again. Perhaps jury pools should intentionally include more minority jurors. Who knows? The solution, it seems, is potentially as multi-layered as the problem itself.

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.

Can My Boss Fire Me For Smoking Marijuana?

marijuana, Washington Supreme Court, , ,

Marijuana and the workplace | Canadian Lawyer

Yes. Numerous clients have asked me that very question since the passage of I-502.

Under this law, citizens may possess and use small amounts of marijuana. Can employers terminate employment? Yes.  Employers may choose to not hire potential employees who use marijuana. Under Roe v. Teletech, 171 Wn.2d 736 (2011), the Washington Supreme Court recently ruled that even though medical marijuana use is legal, employers may still terminate employees for using it.

Employers are free to treat marijuana as alcohol. In other words, employees must NOT be under the influence while in the workplace, driving vehicles, or while performing tasks for their employer.

My opinion? More than ever, it’s important to consult an attorney experienced with these matters if you’re facing criminal charges and trying to protect your job. A conviction for possession of marijuana – and possibly Drug DUI – can get you fired. Reducing and/or dismissing marijuana-related charges is your safest option.

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. Grier: Ineffective Assistance of Counsel

Burglary, Ineffective Assistance, Jury Trial, Uncategorized, Washington Supreme Court, , ,

What Does Ineffective Assistance of Counsel Mean? - NJ Crimmigration

Interesting.

In State v. Grier, WA Supremes held that a defense attorney’s “all or nothing” approach, in which “lesser included” jury instructions were rejected, was a legitimate trial tactic and did not constitute ineffective assistance of counsel (IAC) under the state or federal constitutions. Trial courts are not required to provide lesser included instructions in the absence of a request for such instructions.

Defendant Kristina Grier was charged with Murder in the Second Degree following a fight she had with the victim Gregory Owen.  earlier, they were drinking with a group of people at Grier’s home.  Owen was alleged to have stolen several items from Grier, during the course of the evening.  Some of these items included three guns.  Grier and her son confronted Owen.  A fight broke out.  Unfortunately, a gun went off, killing Owen.

At trial, Grier’s defense attorney withdrew his earlier request for a jury instruction on the lesser offense of Assault.  As a result, the jury was not instructed on those offenses.  The jury convicted Grier of murder.  The case went up for appeal on the issue of whether Grier’s defense attorney was ineffective.  The Court of Appeals reversed Grier’s conviction.  They believed Grier’s attorney was ineffective because he failed to request instructions on the lesser included offenses.

For those unfamiliar with criminal law practice, a “lesser included” offense shares some, but not all, of the elements of a greater criminal offense. Therefore, the greater offense cannot be committed without also committing the lesser offense. For example, Manslaughter is a lesser included offense of murder, assault is a lesser included offense of rape, and unlawful entry is a lesser included offense of Burglary.

The WA Supremes ruled Grier’s attorney’s decision to withdraw the lesser included offense instructions did not prevent her from raising an ineffective assistance claim.  The court also held that defense counsel’s “all or nothing” approach was a legitimate trial tactic and was not IAC.  The court vacated the Court of Appeals decision.

My opinion?  Interesting decision.  It’s difficult to play “Monday Morning Quarterback” and call a defense attorney’s trial tactics ineffective simply because the defendant lost at trial.  What if the defense attorney wanted the jury instruction and Grier was convicted?  Would she appeal the case anyway, and call her attorney ineffective because she was convicted on the lesser charge?  Good decision, WA Supremes.

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.