Category Archives: Washington Supreme Court

Lesser Included Offense

Assault, Bellingham Defense Attorney, felony, Lesser Included Jury Instruction, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

What is LESSER INCLUDED OFFENSE? What does LESSER INCLUDED OFFENSE mean? - YouTube

In State v. Coryell, the WA Supreme Court held that a defendant is entitled to a lesser included offense instruction under the Workman test when a jury could reasonably find, based on evidence submitted and the jury’s decision about whether it is credible or not, that the defendant committed only the lesser offense.

BACKGROUND FACTS

Mr. Coryell and his girlfriend Hart’Lnenicka lived together. One morning, the couple argued. Hart’Lnenicka accused Coryell of cheating on her with an ex-girlfriend. While they were talking, Coryell was playing a video game, and Hart’Lnenicka unplugged the game console, threatening to break it. Coryell took the console from Hart’Lnenicka and set it on the coffee table. At some point, Coryell pushed Hart’Lnenicka to the ground. Eventually, police responded and arrested Coryell.

The parties gave different versions of the incident. Ms. Hart’Lnenicka told police that Coryell kicked her out of the apartment, choked her, thrown her to the ground, and slammed her head into the laundry room doors. Coryell confirmed the sequence of events but denied ever grabbing Hart’Lnenicka around the neck. Ultimately, Coryell was charged with Assault Second Degree and Assault Fourth Degree.

At trial Officer Malone also stated that he saw no Petechial Hemorrhaging in the photographs presented at trial and that he observed no signs of it on Hart’Lnenicka on the day of the alleged assault. Nevertheless, the trial court declined to give the requested fourth degree assault instruction.

The jury convicted Coryell on both counts. Coryell appealed his conviction. Although the Court of Appeals affirmed the trial court’s decision denying a lesser degree instruction, the WA Supreme Court granted review.

COURT’S ANALYSIS & CONCLUSIONS

The Court began by saying that RCW 10.61.003 provides that where an offense consists of different degrees, “the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto.” Additionally, a defendant “may be found guilty of a lesser included offense, the commission of which is necessarily included within that with which he or she is charged in the indictment or information.”

“The reason lesser included instructions are given is to assist the jury in weighing the evidence, determining witness credibility, and deciding disputed questions of fact,” said the Court. “If the evidence permits a jury to rationally find a defendant guilty of the lesser offense, a lesser included offense instruction should be given.”

Consequently, the Court held that the trial court erred when it denied a lesser degree instruction on fourth degree assault:

“The evidence supported an inference that Coryell assaulted, but did not strangle, his girlfriend, and thus, he was entitled to a lesser degree instruction. This is consistent with the test in Workman and with the legislature’s directive in RCW 9A.04.100(2), which provides, ‘When a crime has been proven against a person, and there exists a reasonable doubt as to which of two or more degrees he or she is guilty, he or she shall be convicted only of the lowest degree.'”

Accordingly, the WA Supreme Court vacated Coryell’s conviction.

My opinion? Great decision. It’s fair to allow the defense to argue different theories of what happened based on the lack of evidence. Here, the lack of Petechial Hemorrhaging suffered by the victim raises reasonable doubt on the issue of whether she was strangled.

However, the lack of evidence does not mean she was not a victim of a lesser offense – here, Assault Fourth Degree. The defense should be allowed to argue this point and request a lesser-included jury instruction accordingly. I’m very pleased the WA Supremes finally put in writing that Assault Fourth Degree is a lesser-included offense to Assault Second Degree.

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

Unwitting Possession

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, Due Process, felony, Methamphetamine, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Strict Liability Offenses, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

I am sorry I didn't know you did that! – TheWealthySon : Success Toolbox

In State v. Blake , the WA Supreme Court held that Washington’s Drug Possession Statute exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct.

FACTUAL BACKGROUND

In 2016, police executed a search warrant in Spokane, Washington, seeking evidence of stolen vehicles. They arrested three people on the property, including the Defendant Ms. Blake.  At the jail, a corrections officer discovered a small baggy containing methamphetamine in the coin pocket of Ms. Blake’s jeans.

The State charged Blake with Possession of a Controlled Substance.  At her bench trial, Blake relied on the judicially created affirmative defense of Unwitting Possession. She testified that a friend had bought the jeans secondhand and given them to Blake two days before Blake’s arrest.

Blake also said she had never used methamphetamine and did not know the jeans had
drugs in the pocket. She acknowledged that the drugs had been “on her” on the day of her arrest. Blake’s boyfriend also testified that Blake did not use drugs and that she had received the jeans from a friend. Despite her defense, the trial court found that Blake had possessed methamphetamine on the day in question and found Blake guilty.

On appeal, Blake argues that requiring her to prove unwitting possession to the charged offense violates due process.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court held that Washington’s  felony drug possession statute – which is a essentially a strict liability statute – exceeds the state’s police power by imposing harsh felony consequences on innocent non-conduct with no mental state to commit the crime.

“The basic drug possession statute at issue in this case states, ‘It is unlawful for any person to possess a controlled substance'”, wrote Justice McCloud. “The State need not prove any mens rea (mental state) element to secure a conviction for this crime.”

The Court reasoned that the Due Process Clause protections limit the Legislature’s police power to criminalize wholly innocent and passive non-conduct. Stated differently, a defendant’s passive and innocent non-conduct falls outside the State’s power to criminalize:

“Does this strict liability drug possession statute with these substantial penalties for such innocent, passive conduct exceed the legislature’s police power? The due process clauses of the state and federal constitutions, along with controlling decisions of this court and the United States Supreme Court, compel us to conclude that the answer is yes—this exceeds the state’s police power.”  ~Justice Gordon McCloud, WA Supreme Court.

The Court further reasoned that the State’s police power is not infinite. “If it were, the result would be a police state, and the legislative branch of the government would be omnipotent,” said Justice McCloud. Finally, the Court reasoned that  the statute criminalizes innocent and passive possession, even by a defendant who does not know, and has no reason to know, that drugs lay hidden within something that they possess. “The legislature’s police power goes far, but not that far,” said the Court.

Accordingly, the Court held that RCW 69.50.4013(1)—the portion of the simple drug possession statute creating this crime—violates the due process clauses of the state and federal constitutions and is void.

With that, the WA Supreme Court vacated Ms. Blake’s conviction.

My opinion? Excellent decision, Finally, the courts are giving teeth to the Unwitting Possession Defense. In this defense, a person is not guilty of possession of a controlled substance if the possession is unwitting. Possession of a controlled substance is unwitting if (1) a person did not know that the substance was in their possession or (2) did not know the nature of the substance.

The burden is on the defendant to prove by a preponderance of the evidence that the substance was possessed unwittingly. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true.

Up until now, Washington’s felony drug possession statute essentially circumvented the Unwitting Possession defense.  Thankfully, the WA Supreme Court put a stop to that.
Please contact my office if you, a friend or family member are charged with a Drug Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.

Prosecutor’s “War On Drugs” Comments Deprived Defendant of a Fair Trial

Bellingham Defense Attorney, Constitutional Rights, Drug Offenses, felony, Jury Trial, Mount Vernon Criminal Defense Attorney, Prosecutorial Misconduct, Skagit County Criminal Defense, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Is It Time To End The War on Drugs? Senator Cory Booker Thinks So. - DailyClout

In State v. Loughbom, the WA Supreme Court held that the Prosecutor’s comments during trial advocating the “War on Drugs” amounted to Prosecutor Misconduct and deprived the defendant of a fair trial.

FACTUAL BACKGROUND

In May 2017, Mr. Loughbom was charged with three counts of various drug crimes. In October of 2017, Loughbom’s case proceeded to jury trial.  During trial, the prosecutor referenced the “War on Drugs” three times:

1. During his opening statement, the prosecutor said, “The case before you today represents yet another battle in the ongoing war on drugs throughout our state and throughout our nation as a whole. I’ve been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of Delivery and Conspiracy to Deliver a Controlled Substance.”

2. The prosecutor began his closing argument by stating, “The case before you represented another battle in the ongoing war on drugs throughout our state and the nation as a whole. I have been tasked with presenting the evidence against the defendant, Gregg Loughbom, of the crimes of delivery of controlled substances . . . and conspiracy to deliver a controlled substance.”

3. During the State’s rebuttal argument, the prosecutor stated that “law enforcement cannot simply pick and choose their Confidential Informants to be the golden children of our society to go through and try and complete these transactions as they go forward in the, like I said, the ongoing war on drugs in this community and across the nation.”

Although the jury found Mr. Loughbom not guilty of one drug charge, he was found guilty of delivery of methamphetamine and conspiracy to deliver a controlled substance other than marijuana. The trial court sentenced Loughbom to 40 months in prison and 12 months of community custody.

Loughbom appealed on arguments that the prosecutor’s repeated comments about the war on drugs constituted flagrant and ill intentioned misconduct.

COURT’S ANALYSIS & CONCLUSIONS

The Supreme Court began by saying We presume prosecutors act impartially “in the interest of justice.” At the same time, we expect prosecutors to “‘subdue courtroom zeal,’ not to add to it, in order to ensure the defendant receives a fair trial.” State v. Walker, 182 Wn.2d 463, 477, 341 P.3d 976 (2015) (quoting Thorgerson, 172 Wn.2d at 443). Justice can be secured only when a conviction is based on specific evidence in an individual case and not on rhetoric. We do not convict to make an example of the accused, we do not convict by appeal to a popular cause, and we do not convict by tying a prosecution to a global campaign against illegal drugs.

“We agree with Loughbom and hold that the prosecutor’s remarks about the war on drugs were improper and rise to the level of being flagrant and ill intentioned. The prosecutor’s repeated invocation of the war on drugs was a thematic narrative designed to appeal to a broader social cause that ultimately deprived Loughbom of a fair trial.” ~WA SUpreme Court

The Court also reasoned that the prosecutor’s repeated references to the war on drugs were erroneous, and that framing Loughbom’s prosecution as representative of the war on drugs violated his right to a fair trial.

With that, the WA Supreme Court reversed the Court of Appeals and remand for a new trial.

My opinion? Excellent decision. Clearly, the prosecutor’s repeated appeals to the war on drugs caused incurable prejudice. It is deeply troubling that the State employed the war on drugs as the theme of Loughbom’s prosecution and reinforced this narrative throughout his trial.

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

Shackling Defendants In Court – Without Reason – Is Unconstitutional.

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, felony, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Court ruling about shackles puts stress on judicial system | Local ...

In State v. Jackson, the WA Supreme Court held that shackling in court without analyzing whether the shackles are necessary violates the defendant’s constitutional rights.

BACKGROUND FACTS

In 2017, Mr. Jackson,  was charged with assault in the second degree, domestic violence, for strangling his fiancée. At every court appearance, Jackson was forced to wear some form of restraints pursuant to jail policy. The trial court did not engage in any individualized determination of whether restraints were necessary for courtroom safety but, instead, filed a consolidated opinion adopting the jail policy for all superior court appearances for all incarcerated defendants.

After a jury found Jackson guilty, he appealed, arguing that his constitutional right to due process was violated when he was forced to wear restraints without an individualized inquiry into their necessity.

The Court of Appeals held that the shackling of Jackson without an individualized inquiry into whether shackles were necessary violated his constitutional rights. However, it also held that this violation was harmless; thus leaving Jackson with a constitutional violation without a remedy.

Both the Prosecutor and Mr. Jackson appealed to the WA Supreme Court. Jackson argued that the Court of Appeals did not apply the constitutional “harmless error test” correctly. The State, on the other hand, cross-petitioned for review of the constitutionality of the use of pretrial restraints.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court reviewed the history of defendants wearing pretrial restraints in court:

“The problems in the history of shackling in early America are not limited to the courts and incarcerated individuals . . . The use of shackling as a means of control and oppression, primarily against people of color, has run rampant in the history of this country . . . Shackles and restraints remain an image of the transatlantic slave trade and the systematic abuse and ownership of African persons that has endured long beyond the end of slavery.

Shackles and restraints also represent the forced removal of Native people from their homelands through the Trail of Tears and the slave labor of Native people. We recognize that although these atrocities occurred over a century ago, the systemic control of persons of color remains in society, particularly within the criminal justice system.” ~WA Supreme Court

Next, the Court reasoned that under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Constitution, it is well settled that a defendant in a criminal case is entitled to appear at trial free from all bonds or shackles except in extraordinary circumstances.

That said, the WA Supreme Court also mentioned that the right to be free from restraint is not absolute, and trial court judges are vested with the discretion to give measures that implicate courtroom security, including whether to restrain a defendant in some capacity in order to prevent injury.

Next, the court  identified several factors under State v. Hartzog which help a trial court determine if a defendant needs to be shackled:

“The seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ~WA Supreme Court quoting State v. Hartzog

The Court reasoned that a trial court must engage in an individualized inquiry into the use of restraints prior to every court appearance. Furthermore, the State does not meet this burden by simply establishing that no jurors observed the restraints during trial.

“When the State does not meet its burden to prove that the use of restraints at trial was harmless beyond a reasonable doubt, the defendant is entitled to a new trial and the defendant may only be restrained or shackled during any stage of the proceedings after the court makes an individualized inquiry into whether shackles or restraints are necessary,” said the Court.

With that, the WA Supreme Court reversed the Court of Appeals on harmlessness and remanded for a new trial with instructions that at all stages of court proceedings, the court shall make an individualized inquiry into whether shackles or restraints are necessary.

My opinion? Good decision. The manner in which the justice system treats people in these public settings matters for the public’s perception, including that of the defendant. Practices like routine shackling are inconsistent with our constitutional presumption that people who have not been convicted of a crime are innocent until proven otherwise.

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.

Washington Supreme Court Issues Open Letter Confronting Racial Injustice

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

An open letter to white people—from a white coach with young black ...

The Washington Supreme Court issued an extraordinary open letter urging lawyers to take steps to confront racial injustices in society and in the law.

“Recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.”

~WA Supreme Court

Among other things, the Court also said “the legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will.”

According to Scarcella, the Washington Supreme Court has been heralded for its diversity. The justices’ letter, a rare public statement from a court about current events, rocketed across social media as lawyers weighed the implications of the court’s declaration, which comes amid national outrage over the police-involved killing of George Floyd in Minnesota. An officer who knelt on Floyd’s neck for eight minutes while he was handcuffed and on the ground has been charged with second-degree murder. Three other officers also face criminal charges for their alleged roles in Floyd’s death.

Kudos to the WA Supreme Court for recognizing that racial injustice exists, and that we, as a legal community, are bound to address it and eradicate it.

Please contact my office if you, a friend or family member face criminal charges. Hiring a competent and experienced criminal defense attorney is the first and best step toward justice.

Inslee Names First Black Woman Justice to Serve on WA Supreme Court

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Inslee appoints Judge G. Helen Whitener to the Washington State ...

In April, Gov. Jay Inslee announced today the appointment of Justice G. Helen Whitener to the Washington State Supreme Court. She replaces Justice Charles Wiggins, who retired from the bench last month.

Whitener has been a judicial officer since 2013. From 2013 to 2015, she served as a judge on the Board of Industrial Insurance Appeals. Inslee then appointed her to the Pierce County Superior Court in 2015, where she has worked as a judge for over five years, retaining her seat in a 2015 election and winning re-election to a full term in 2016. Before becoming a judge, Whitener litigated criminal cases for 14 years as both a prosecutor and defense attorney.

Whitener is known for her commitment to justice and equity. She serves as co-chair of the Washington State Minority and Justice Commission and as a member of the Civil Legal Aid Oversight Committee. She continues to garner recognition for her work to advance the cause of justice. Last year, Whitener was awarded the Washington State Bar Association’s C.Z. Smith Excellence in Diversity and Inclusion Award, the King County Washington Women Lawyers President Award, the Tacoma-Pierce County Bar Association’s Diversity Award and the Seattle University School of Law’s Woman of the Year Award.

In joining a supreme court that has recently driven major criminal justice reform, and that is generally progressive but often divided, Whitener could determine how boldly it proceeds in years ahead.

Her appointment has drawn attention for boosting the representation of marginalized groups. She is a Black, gay, and disabled immigrant from Trinidad. With her appointment, Washington’s Supreme Court is the most diverse appellate court in the country.

Last year, a Brennan Center for Justice report found that most states’ high courts are “overwhelmingly white and male,” including 24 all-white state supreme courts, and 13 states that have “never seated a person of color as a justice.”

Whitener has often explained that a diverse judiciary — one that fully reflects the population it serves — is essential to maintaining trust and confidence in the rule of law.

“I believe as a marginalized individual, being a Black, gay, female, immigrant, disabled judge, that my perspective is a little different,” she said in February. “So I try to make sure that everyone that comes into this courtroom feels welcome, feels safe, and feels like they’ll get a fair hearing.”

Inslee appoints first Black woman justice to serve on WA Supreme ...

Congratulations, Justice Whitener!

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.

A Snowmobile IS a Motor Vehicle

Bellingham Defense Attorney, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft of Motor Vehicle, Uncategorized, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Search warrant in Innisfil leads to charges in snowmobile theft ...

In an interesting turn – and a razor-thin 5-4 decision – the WA Supreme Court’s State v. Tucker reversed an earlier decision by the WA Court of Appeals and found that a snowmobile IS, in fact, a “motor vehicle” for purposes of Washington’s Theft of a Motor Vehicle statute.

BACKGROUND FACTS

I recently blogged about this case last year. In February 2016, Ms. Tucker and her accomplice broke into a cabin near Stampede Pass. The cabin was accessible only by snowmobiles. The pair stole several items of personal property, including a snowmobile.

The State charged Ms. Tucker with residential burglary, second degree theft, theft of motor vehicle, and third degree malicious mischief. A jury found Ms. Tucker guilty of first degree criminal trespass and theft of motor vehicle, but could not reach a verdict on the charge of second degree theft. The trial court declared a mistrial on that count, and it later was dismissed without prejudice.

Defense counsel, relying on State v. Barnes, filed a motion to arrest judgment on the theft of a motor vehicle conviction. The trial court denied the motion on the ground that the snowmobile was licensed and has a motor. Therefore, her conviction remained unchanged on the theft of a motor vehicle charge.

Ms. Tucker appealed the conviction. The WA Court of Appeals reversed the lower court. Relying on Barnes, a majority of that court held that the statute criminalizes only theft of “a car or other automobile.”

Apparently, the story didn’t end. This time, the State appealed the case to the WA Supreme Court, who seems to have made a final decision on the matter (for now).

COURT’S ANALYSIS AND CONCLUSIONS

The WA Supreme Court reasoned that the WA legislature defined “motor vehicle” as a self-propelled device that is capable of moving and transporting people or property on a public highway.

The Court reasoned that Washington’s vehicle and traffic laws define “Motor Vehicle” as a vehicle that is self-propelled or a vehicle that is propelled by electric power obtained from overhead trolley wires but not operated upon rails.  Also, “Vehicle” is further defined as a “device capable of being moved upon a public highway and in, upon, or by which any persons or property is or may be transported or drawn upon a public highway.”

“So a motor vehicle is a self-propelled device (a description of its mechanics) that is capable of moving and transporting people or property on a public highway (a description of its function). Where, as here, the legislature has provided a definition, we are not free to create our own.”

It also reasoned that although the trial judge said that a snowmobile is a motor vehicle in part because a snowmobile must be licensed (at least in some situations), the legislature’s definition of “motor vehicle” says nothing about a licensing requirement. “Although such a requirement may provide the courts with a useful test, we cannot simply create a new requirement out of thin air.”

Furthermore, reasoned the Court, a “snowmobile” is a self-propelled device that is capable of moving and transporting people or property on a public highway. Here, the court reasoned that although people generally don’t operate snowmobiles – which are designed for use on snow and ice – on public highways, Washington’s  Snowmobile Act not only makes clear that a snowmobile is capable of moving and transporting people or property on a public highway, at least when the highway is covered with snow or ice, but also makes clear that it is legally permitted to do so.

“In sum, a snowmobile satisfies the definition of “motor vehicle” provided by the legislature.”

Accordingly, the WA Supreme Court reversed the Court of Appeals and affirmed Tucker’s conviction.

Please contact my office if you, a friend or family member face criminal charges like Theft of a Motor Vehicle. Hiring an experienced, competent attorney who knows and understand the law is the first and best step toward justice.

Disruptive Defendants

Bellingham Defense Attorney, Drug Offenses, Due Process, Mount Vernon Criminal Defense Attorney, Possession of Stolen Motor Vehicle, Sixth Amendment, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Irate Florida man Alan McCarty found guilty of threatening to kill ...

In State v. Davis, the WA Supreme Court upheld a trial judge’s findings that a disruptive defendant waived his right to be present at trial.

BACKGROUND FACTS

In March 2014, the State charged Davis with two counts of possessing a stolen vehicle and one count of possession of a controlled substance. He waived his right to counsel. The court found Davis knowingly and voluntarily waived his right to counsel, and he proceeded pro se.

Mr. Davis’s path toward trial was rocky. He was incarcerated while the charges were pending. He also had troubles communicating with his investigator, and his motions to continue his case were denied.

At the CrR 3.5 hearing, Davis again sought a continuance and attempted to withdraw as his own counsel. The judge denied both motions. In response, Davis became irate. He screamed that he wanted a new judge. The court warned Davis that outbursts and disruptions would lead to his removal. Davis said, “You can remove me now. What have we been doing here? I don’t even want to be here. So remove me. I don’t care. I told you that. You can hold your trial without me.”

Trial proceeded. Davis returned to court and represented himself without significant incident until the State commenced its case in chief. He took numerous bathroom breaks throughout the day. At one point, however, Mr. Davis returned to the courtroom and discovered his water was removed by court staff.

Again, Mr. Davis He grew irate. He began a tirade of expletives, pounding on the table with his fists, and yelling at an extremely loud volume, at one point screaming “F**k you!”  to the judge. Davis was warned that he would be removed from the courtroom if he was going to continue to raise his voice and curse. The State attempted to proceed with questioning witnesses, but Davis refused to cease his outbursts. The judge temporarily cleared the jury.

Davis repeatedly said, “You can hold your trial without me,” and the court replied, “I’m going to do that.” Davis went as far as to remark, “Thank you. Thank you. Just go ahead with your kangaroo court . . . . I’m done with it.” During this exchange, Davis shouted at the top of his lungs, swearing, and apparently moved to exit the courtroom. The judge stopped Davis in order to make an oral ruling. She found that Davis was voluntarily absenting himself from the proceedings, noting that Davis intentionally drank more water in order to delay trial with bathroom breaks, often during critical portions of witness testimony.

After Davis left the courtroom, the jury returned and the State resumed its direct examination. The State questioned officers involved in Davis’s arrest, asking about the cocaine discovered in his possession and his voluntary statements given after arrest. Davis was not present to cross-examine either witness. He was absent for approximately 50 minutes of trial.

The following day, Davis returned. The court warned him that any profanity or disruptions would result in his removal. Davis agreed, though he continued to interrupt and ask for standby counsel, which the court denied. Despite Davis’s combative behavior, the trial proceeded with Davis present. Davis was convicted on all counts.

Davis appealed. The Court of Appeals reversed Davis’s convictions. The State appealed to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court began by saying The Sixth Amendment and the due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution, as well as the Washington state constitution, guarantee the right of the criminal defendant to be present at his or her own trial.

However, the Court also said that the United States Supreme Court and this court have held that a defendant’s persistent, disruptive conduct can constitute a voluntary waiver of the right to be present.

The Court turned to State v. Garza and State v. Thomson as guidance. These cases give the test necessary to answer the primary question of whether Davis waived his right to be present. In short, the crucial test established in these cases was whether the defendant’s absence was voluntary.

“In this case, the trial court did not abuse its discretion in finding that Davis waived his right to be present,” said the WA Supreme Court. “The record shows that Davis wanted to leave the courtroom and the trial judge accommodated him. Davis asked and later yelled, repeatedly, that he did not ‘even want to be here. So remove me. I don’t care. I told you that. You can hold your trial without me.’ The court then reminded Davis that he had another of the State’s witnesses to cross-examine, but Davis stated again that he was done.”

Furthermore, the court said the trial court properly exercised its discretion when it permitted a contumacious and stubbornly defiant defendant who insisted on leaving the courtroom to absent himself from the proceedings. It emphasized that maintaining order in the courtroom is within the discretion of the trial judge, and the judge properly exercised it here.

“Davis repeatedly stated that he did not want to be in court, that he was done, and that he wished to leave. Coupled with his disruptive outbursts that culminated in an abusive shouting match with the trial court, Davis obtained what he consistently told the court he wanted: leaving the proceedings. We hold that Davis waived his right to be present at trial.”

Accordingly, the WA Supreme Court reversed the Court of Appeals, affirmed the trial court’s
ruling on voluntary absence and upheld Mr. Davis’s criminal convictions.

Please contact my office if you, a friend or family member face criminal charges. It’s never a good idea to represent yourself at criminal jury trials. Hiring an attorney is the first and best step toward justice.

Miranda & Border Detention

Bellingham Defense Attorney, Drug Offenses, Fifth Amendment, Interrogation, Miranda, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Interrogation Room - SoFlo Studio

In State v. Escalante, the WA Supreme Court held that separating a person from the normal stream of traffic and detaining them for five hours in a locked room that was inaccessible to the public or other travelers will create the type of police-dominated environment requires Miranda warnings.

BACKGROUND FACTS

In August 2017, Mr. Escalante was traveling in a van with a group of friends, heading back into Washington from Canada. They were all returning from the Shambala Music Festival in British Columbia. At the Frontier Border Crossing, patrol agents searched all vehicles coming from the festival as part of a drug enforcement operation. Escalante and his friends were directed to the secondary inspection area. Border patrol agents took their documents.

The secondary inspection lobby was an 11 x 14 foot locked room. It is not accessible to the public or other travelers. Detainees are not allowed to use the bathroom or access water without getting permission from agents and submitting to a pat-down search. Agents patted down all four men and found narcotics on the driver and one passenger, but not on Escalante or the other passenger. Agents kept all the men secured – either in the locked lobby or in the detention cells – for five hours while they searched the van.

The search uncovered drug paraphernalia and personal items containing drugs, including a backpack with small amounts of heroin and lysergic acid diethylamide (LSD). Without giving Miranda warnings, agents confronted the men with each item of drug paraphernalia and each item in which drugs were found and asked who owned it.

Escalante admitted he owned the backpack. At that time, Escalante and his companion were the only travelers in the secured lobby. Eventually, the Border Patrol Agents summoned local law enforcement and held Escalante until they arrived. These officers formally arrested Escalante and gave him Miranda warnings.

Escalante was charged in state court with possession of heroin and LSD. He moved to suppress his statement claiming ownership of the backpack because it was obtained in custody by interrogation without Miranda warnings. However, the trial court admitted Escalante’s incriminating statement. Escalante was convicted at trial. The Court of Appeals affirmed. The case eventually made its way to the WA Supreme Court.

COURT’S ANALYSIS & CONCLUSIONS

The WA Supreme Court explained that the Fifth Amendment guarantees that individuals will not be compelled by the government to incriminate themselves. In short, the Fifth Amendment protects an individual’s right to remain silent, in and out of court, unless he chooses to speak in the unfettered exercise of his own will.

The Court also explained that in order to assure an individual freely makes the choice to talk to the police, Miranda requires that before custodial interrogation, the police inform a suspect of their right to remain silent and their right to the presence of an attorney, appointed or retained.

Evaluating the totality of the circumstances, the Court concluded that a reasonable person in Escalante’s circumstances would have felt their freedom of action was curtailed to a degree associated with formal arrest:

“Agents confiscated Escalante’s documents, routed him to a secondary inspection area, separated him from his belongings, arrested the driver of the van in which he was traveling, and detained him for five hours in a small locked lobby that was not accessible to the public or other travelers. After a lengthy detention, he was questioned using a procedure that communicated agents had found drugs and were suspicious of him. These circumstances created precisely the type of incommunicado police-dominated environment that was the concern of Miranda. We hold that Escalante was in custody and his unwarned statements should have been suppressed.”

With that, the WA Supreme Court reversed and vacated Mr. Escalante’s convictions.

My opinion? Good decision. Escalante should have been informed of his Miranda rights. Clearly, that the statements he made resulted from direct interrogation by the officers and were not spontaneous and unsolicited statements of a person who was anxious to explain.

Please contact my office if you, a friend or family member are charged with a crime after giving incriminating statement and/or undergoing a questionable search or seizure. Hiring a competent and experienced defense attorney is the first and best step toward justice.

Nearly 1,000 Inmates To Be Released In Washington State

ACLU, Bellingham Defense Attorney, Coronavirus, Jail, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Washington Supreme Court, Whatcom County Criminal Defense, , , , ,

Virginia begins releasing new data about COVID-19 in prisons

Apparently, Gov. Jay Inslee announced that Washington state intends to release up to 950 inmates confined in Washington state prisons — a reduction of about 6 percent, based on 2019 inmate numbers — to stop a potential widespread outbreak of COVID-19 in the prison.

Inslee and the Washington State Department of Corrections released their emergency plan to keep inmates safe from COVID-19 on Monday, after a back-and-forth of lawsuit responses between the state and Columbia Legal Services.

Columbia Legal Services had filed a petition in April, with the Washington Supreme Court on behalf of incarcerated petitioners. It called for the prompt release of thousands of prisoners to prevent the further spread of Covid-19 behind bars.

As of April 10, 2020, the department has tested 237 inmates and has had 179 negative results, 8 positive results. Fifty test results are pending. According to the department of corrections, the people tested have been isolated. As of April 10, 161 inmates remain in isolation. Another 912 others are in quarantine.

Jaime Hawk, of the ACLU’s Washington Campaign for Smart Justice, called the plan a helpful first step, but said it doesn’t remove the dangers of Covid-19 for incarcerated people in Washington state.

“We urge the governor and the Department of Corrections to do more to reduce state prison populations, which is the only way to follow the advice of public health experts and keep those living and working in our correctional facilities safe.”  ~Jaime Hawk, ACLU

The state’s plan will target people for release who are:

• Non-violent inmates, both vulnerable and non-vulnerable, who have a release date within 75 days.

• Non-violent inmates and vulnerable inmates who have a release date in 2 to 6 months. They will be released through a re-entry planning process.

• Non-violent inmates and vulnerable inmates who have a release date in 6 to 8 months, with an approved release plan.

• Non-violent inmates who were jailed for lower level supervision violations

• Non-violent inmates who are already on work release and can be freed through the secretary’s furlough authority.

Please read my Legal Guides titled Making Bail and Quash Your Bench Warrant and contact my office if you, a friend of family member find themselves stuck in jail or prison during the Coronavirus Pandemic.