Category Archives: Washington Supreme Court

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, , ,

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. Rivera-Santos: Why Crossing State Lines – Intoxicated – Is Double Trouble

Constitutional Rights, Department of Licensing, Due Process, DUI, law enforcement, misdemeanor, police, Probable Cause, Reckless Driving, Search and Seizure, Search Warrant, Terry Stop, Traffic Infractions, Washington State Patrol, Washington Supreme Court, , ,

In State v. Rivera-Santos, the WA Supreme Court determined that the defendant, who drove under the influence of alcohol in both Washington and Oregon, could be convicted of a DUI in both states without violating his constitutional rights.

Rivera-Santos led police on a chase that started on the Washington side of I-5 and ended on the Oregon side. He was found to have a blood-alcohol content level of .17 percent (more than twice the legal limit), and convicted by an Oregon court of driving under the influence. He was also charged with a DUI in Clark County District Court, but Rivera-Santos argued that it should be dismissed under the constitutional protections against double-jeopardy (i.e. being punished twice for the same crime).

Justice Fairhurst wrote that convicting Rivera-Santos in Washington would not be double-jeopardy, as it was a separate crime.  He drove while drunk in Oregon, and was punished for that by an Oregon court. He also drove while drunk in Washington, and a Washington court could punish him for that separate crime.

My opinion?  If it looks like a duck, smells like a duck, then it must be a duck.  Said differently, this legal decision looks like double jeopardy, smells like double jeopardy, therefore it must be double jeopardy.

For those who don’t know, “Double Jeopardy” happens when defendants are prosecuted twice for the same offense.  It’s unconstitutional.  The Double Jeopardy Clause protects against three distinct abuses: [1] a second prosecution for the same offense after acquittal; [2] a second prosecution for the same offense after conviction; and [3] multiple punishments for the same offense.’ U.S. v. Halper, 490 U.S. 435, 440 (1989).

Here, the WA Supremes stated that Mr. Rivera-Santos committed two different crimes in two different states.  Fine, I can agree with that.  HOWEVER, I disagree with their decision that charging these crimes is not double jeopardy.  Why do I disagree?  Because these “two crimes” arose from the same facts and circumstances.

Mr. Rivera-Santos did not steal candy from a 7-11 in Oregon, cross State lines, and then steal candy from a 7-11 in Washington.  The crime of DUI is, essentially, driving while intoxicated.   Although Mr. Rivera-Santos drove across State lines while intoxicated, he was DUI only one time during that crossing.  Therefore, he should only be punished once.   Anything more is double jeopardy.

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. McCormick: Sex Offender’s Suspended Sentence Remains Revoked

Bellingham Defense Attorney, Due Process, Mount Vernon Criminal Defense Attorney, Rape, Sentencing, Sex Crimes, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , ,

In State v. McCormick, the WA Supreme Court held the plain language of Washington’s SSOSA statute does not require proof that a violation was willful before a SSOSA sentence may be revoked.

David McCormick was convicted of first degree rape of a child for raping his 11-year-old granddaughter. He was sentenced to over 10 years in prison, but given a special sex offender sentencing alternative (SSOSA) that suspended the prison term provided he abide by certain restrictions, including that he “not frequent areas where minor children are known to congregate”

Unfortunately, McCormick’s community corrections officer was tipped off that McCormick had been regularly visiting a St. Vincent De Paul Food Bank located in a building used as part of an elementary school. This was not McCormick’s first violation of the SSOSA terms, and the trial court revoked the sentencing alternative.

McCormick argued that the State should have been required to prove that his violation was willful, that the state and federal constitutional guarantees of due process require proof that such a violation was willful before revoking a suspended sentence, and that there was insufficient evidence.

However, the Court held that the plain language of the SSOSA statutes do not require proof that a violation was willful before a sentence may be revoked, that post-conviction due process requirements do not require proof of willfulness, and that there was sufficient evidence to support the trial court’s decision. Justice Fairhurst wrote the majority opinion and was joined by seven other justices.

Justice Sanders dissented, asserting that “[t]he State should at least be constitutionally required to prove McCormick reasonably should have known the food bank was an area where minors are known to congregate.”

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. Garvin: WA Supremes Held “Squeeze Search” Unlawful

Constitutional Rights, Drug Offenses, felony, law enforcement, marijuana, misdemeanor, police, Privacy, Probable Cause, Search and Seizure, Terry Stop, Traffic Infractions, Washington Supreme Court, , ,

In State v. Garvin, the Court held that police officers cannot “squeeze” a defendant’s pockets to determine the nature of objects in the pocket.

An officer pulled Anthony Garvin over for a traffic infraction. When he noticed a knife on the seat next to Garvin, the officer ordered Garvin out of the car and conducted a search for additional weapons. In the process he discovered a baggie of methamphetamine. At trial the officer testified, “We don’t really pat anymore. It’s more of a squeeze search.”

Garvin moved to suppress the evidence seized, and the trial court denied the motion. He was convicted of possession of a controlled substance, and Court of Appeals upheld the conviction.  The WA Supreme Court granted review.

The court reasoned that the officer was not allowed to manipulate objects within the clothing, and his “squeeze method” exceeded the scope of a valid frisk under the “stop and frisk” rule articulated in Terry v. Ohio, 392 U.S. 1 (1968).  The court added, “Without probable cause and a warrant, an officer is limited in what he can do.  He cannot arrest a suspect, he cannot conduct a broad search.”

My opinion?  Yaaaay!!

Many clients get arrested because police officers obtain evidence unlawfully.  It’s an outrage!  This case is beautiful.  I can’t wait to argue a Garvin motion in my future attempts to suppress unlawfully obtained evidence.   🙂

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. Sutherby: Great Case Regarding Improper Prosecution and Ineffective Assistance of Counsel

Assault, Constitutional Rights, Ineffective Assistance, Prosecutorial Misconduct, Rape, Sentencing, Sex Crimes, Unit of Prosecution, Washington Supreme Court, , ,

In State v. Sutherby, the WA Supreme Court threw out a Rape of a Child conviction for improper prosecution and ineffective counsel. Shortly before Christmas 2004, the Sutherby’s five-year-old granddaughter (“L.K.”) stayed with them for two nights at their Grays Harbor home. Based on the girl’s accusations, Mr. Sutherby was arrested and charged with multiple sex offenses to include first degree rape of a child and first degree child molestation.

A subsequent search of his personal computer found child pornography, and he was charged with 10 counts of possession of depictions of minors engaged in sexually explicit conduct. He was convicted by a jury on all counts and appealed.

The Court here considered two issues: “(1) what is the proper unit of prosecution for possession of child pornography under former RCW 9.68A.070 (1990), and (2) did Sutherby receive ineffective assistance of counsel due to his trial attorney’s failure to seek a severance of the child rape and molestation charges from the possession of child pornography charges?”

Sutherby argued that he should have been sentenced on only one count of possession of child pornography under the criminal statute, formerly RCW 9.68A.070, rather that separate counts for each image. The court noted that the U.S. and Washington constitutions both protect a defendant from being punished more than once for the same offense. The statute provided “[a] person who knowingly possesses visual or printed matter depicting a minor engaged in sexually explicit conduct is guilty of a class C felony.”

The court said that “any” is vague, and determined defendants who possess multiple images should only be charged with a single count of possession. The court remanded the sentencing of Sutherby for a single count of possession.

Sutherby also sought reversal of his convictions for child rape and child molestation based on his trial attorney’s failure to move for severance of the child pornography counts from these charges. As the court noted, severance of charges is important when there is a risk that the jury will use the evidence of one crime to infer the defendant’s guilt for another crime or to infer a general criminal disposition.

The case against Sutherby for possession of child pornography was strong, and could have influenced the jury on the rape and molestation charges. The court agreed that Sutherby demonstrated ineffective assistance of counsel based on his trial attorney’s failure to seek severance of the charges. The Supreme Court reversed Sutherby’s convictions for child rape and molestation and remanded for retrial.

My opinion?  Yes, society HATES sex crimes; especially when children are possibly involved.  Here, however, the Supremes correctly looked beyond the nature of the crime and addressed how the case was botched by the Prosecutor and defense attorney alike.  Clearly, the Supremes sent a message: stacking charge after charge is, simply, unconstitutional.  Multiple images does not = multiple charges!  We creep into the realm of  unlawful Double Jeopardy.

Additionally, State v. Sutherby teaches defense attorneys about ineffective assistance of counsel.  Oftentimes, prosecutors will try adding additional charges on totally unrelated events before trial.  This tactic, if successfully done, makes juries suspicious that the defendant “must be a bad person, otherwise they wouldn’t have acquired all these criminal charges.”

In other words, the juries become prejudiced toward the defendant, and might decide the cases accordingly.  This type of outcome kills justice.  Defense attorneys must avoid sloppiness and BE CAREFUL.  We cannot allow the State to unfairly prejudice our clients at the 11th hour before trial.

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.