Tag Archives: Bellingham Criminal Defense Attorney

State v. Espey: Prosecutor’s Improper Comments During Trial Reverses Defendant’s Convictions

Assault, Burglary, Constitutional Rights, Drug Offenses, Due Process, felony, Firearm, Jury Trial, Privacy, Prosecutorial Misconduct, Robbery, Violent Crime, Washington Court of Appeals, , ,

New trial ordered for murder suspect; Fifth District says Baricevic allowed improper testimony | Madison - St. Clair Record

Good opinion. In State v. Espey, The Court of Appeals ruled that a Prosecutor’s improper comments during a jury trial required reversal of the defendant’s convictions.

Mr. Espey was charged with Robbery First Degree, Burglary First Degree, Unlawful Possession of a Firearm First Degree, Possession of a Stolen Firearm and Unlawful Possession of a Controlled Substance. He had three separate jury trials. During closing argument at the second trial, the prosecutor argued the jury should consider Espey’s statement to police in light of the time he had spent consulting with attorneys prior to making the statement. The prosecutor said the following:

“Where I suggest you start is, start with his own recorded statement that he gave to the police. Keep in mind that he had been on the run for approximately six weeks. Keep in mind that he had already consulted with two attorneys, Chip Mosley and Gary Clower. He had lots of time to figure out what story he was going to tell the police.

If you have ever dealt with somebody who is a good liar, they have a pattern. What they do is this: admit everything you can’t admit without getting into trouble and only deny the stuff that you have to . . . You heard Tom Espey’s story in there. ‘I’m not guilty of robbery because i personally didn’t take anything. I’m free. Okay, I did everything else, but guess what? You can’t touch me.’ And he is wrong. He is wrong because he doesn’t understand what it means to be an accomplice. He doesn’t understand what accomplice liability means.”

Defense counsel did not object to these highly inflammatory and prejudicial statements. The jury convicted Espey of 3 of the 5 felonies.

In overturning the convictions, the Court of Appeals reasoned that the Prosecutor’s comments were so flagrant and ill-intentioned that no curative instruction could have stopped their prejudicial effect from swaying the jury. Therefore, defense counsel’s failure to object at trial did not waive the issue.

The court further reasoned that a defendant has a right to counsel under the state and federal constitutions under the 6th Amendment of the U.S. Constitution and article 1, subsection 22 of the Washington Constitution. Under these laws, several courts have held that a prosecutor violates these rights by using “an accused’s decision to meet with counsel, even shortly after the incident giving rise to a criminal indictment,” to imply guilt or suggest that the defendant hired an attorney to concoct an alibi. No prosecutor may employ language which denigrates the right of a criminal defendant to retain counsel of his choice, or otherwise limits the fundamental due process right of an accused to present a vigorous defense.

Finally, the court reasoned that the Prosecutor strikes at the core of the 6th Amendment right to counsel when it seeks to create an inference of guilt out of a defendant’s decision to meet with defense counsel. “That is precisely what the state did here and reversal is required as a result. The State thereby improperly commented on and penalized Espey’ s exercise of the right to counsel, a right guaranteed by the state and federal constitutions.”

The Court of Appeals reversed the convictions.

My opinion? 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. Miller: Judge Eliminates Prospective Juror Who Overheard Pretrial Motions

Constitutional Rights, Due Process, Evidence, felony, Homicide & Manslaughter, Jury Trial, Violent Crime, Washington Court of Appeals, , ,

Being a juror ain't so bad – Long Island Business News

In State v. Miller, the WA Court of Appeals decided that the pretrial dismissal of a potential juror who wandered into the courtroom and heard the attorneys arguing pretrial motions did NOT violate public trial right or defendant’s right to be present.

The defendant was charged with Conspiracy to Commit Murder and Murder in the First Degree. Before  jury selection, a juror from the jury pool entered the courtroom while pretrial issues were discussed between the attorneys and the judge. The trial court dismissed the juror from participating in the defendant’s trial before beginning voir dire.

At any rate, the defendant was found guilty of the charges. He appeals his conviction on the grounds that dismissing the potential juror from the jury pool violated his right to a public trial and his right to be present at critical trial stages.

The Court of Appeals decided ( 1) the trial court’ s pre -voir dire dismissal of the prospective juror did not violate Miller’ s public trial right, and 2) even if dismissal of the prospective juror during a recess violated Miller’ s right to be present at critical trial stages, the violation was harmless error.

The court reasoned that the 6th Amendment to the U.S. Constitution and article 1, section 22 of the WA Constitution guarantees the right to a public trial.  In general, this right requires that certain proceedings be held in open court unless a “Bone-Club” analysis set forth in State v. Bone-Club, 128 Wn.2d 254 (1995) supports closure of the courtroom.

The threshold determination when addressing an alleged violation of the public trial right is whether the proceeding at issue even implicates the right. Not every interaction between the court, counsel, and defendants will implicate the right to a public trial or constitute a closure if closed to the public.

Here, the Court reasoned that the trial court’s dismissal of the juror did not occur during voir dire itself, and therefore did not fall within the “category of proceedings that our Supreme Court has already acknowledged implicates a defendant’s public trial right.”  Finally, the Court held that even if Miller’ s right to be present was violated, this violation was harmless error.

 My opinion? Good decision. I’ll take a wild guess and assume the attorneys were arguing Motions in Limine when the potential juror wandered into court and listened. Motions in Limine are a very critical phase in the jury trial process, and happen before jury selection actually begins.

Among other things, motions in limine practice allow attorneys to establish the rules of engagement (what you can and can’t say during trial). More important, they address whether certain controversial evidence is going to be suppressed from the jury; and/or the manner/purpose for which said evidence is going to be admitted (if it is).

Worst-case scenario, a potential juror who overhears a conversation about Motions in Limine take place between the attorneys and judges can inform the jury about all the evidence which the jury doesn’t know about — all the evidence which was suppressed, scrubbed up; deemed irrelevant; prejudicial, cumulative, distracting, etc.

Watching attorneys practice Motions in Limine is like watching a butcher making sausage. It gets to the ugly, brutal and bloody aspects of the case; some of which are purposefully sealed away from the eyes and ears of the jury. Besides, jurors are only supposed to judge cases with the facts they know about and the law as it applies. 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. Jardinez: Parole Officer Conducts Overbroad Search of Defendant’s iPod

Constitutional Rights, Department of Corrections, Evidence, Exigent Circumstances, felony, Firearm, Privacy, Probable Cause, Probation, Search and Seizure, Search Warrant, Washington Court of Appeals, , ,

How to distinguish a 5.5th generation 'Enhanced' iPod - Macintosh How To

Good decision.

In State v. Jardinez, the Court of Appeals held that a community corrections officer’s (CCO) review of video on a parolee’s iPod Nano violated the parolee’s constitutional rights because the CCO did not have a reasonable suspicion based on articulated facts that the iPod Nano contained evidence of past, present or future criminal conduct or violations of the parolee’s conditions of release.

The defendant Felipe Jardinez was an parole for Drive-By Shooting and Unlawful Possession of a Firearm Second Degree. He served prison time followed by 18 months of community supervision. The conditions of community custody included requirements to report to his CCO, refrain from possessing controlled substances and refrain from possessing firearms.

On November 3,2011, Felipe lardinez missed a scheduled meeting with his CCO. The CCO called Jardinez. The two scheduled to meet the next day. During the appointment, Martinez asked Jardinez to submit to a urinalysis test. Jardinez admitted that the test would show marijuana use.

The CCO instructed Jardinez to empty his pockets. Jardinez placed an iPod Nano onto a desk. The CCO was interested in the iPod because parolees occasionally take pictures of themselves with other gang members or “doing something they shouldn’t be doing.” When the CCO handled the iPod, Jardinez appeared nervous. Nevertheless, the CCO lacked facts that the iPod video player would show evidence of a crime or violation of the conditions of the defendant’s community custody.

The CCO accessed the iPod. He found a video recorded earlier that morning. The CCO played the video. It showed  Jardinez pumping a shotgun in his bedroom. Jardinez was arrested. Police searched his home and found the shotgun seen in Jardinez’s iPod video.

Jardinez was charged with Unlawful Possession of a Firearm First Degree. Jardinez moved to suppress the evidence obtained through the CCO’s search of his iPod, and all evidence seized as a result of law enforcement officers searching his home as the spoiled fruit of the unlawful viewing of the video on his iPod.

The trial court granted Felipe Jardinez’s motion to suppress. The court concluded that a warrantless search of the iPod would be justified only if the CCO had a reasonable suspicion based on articulated facts that the device contained evidence of past, present or future criminal conduct or violations of the defendant’s conditions of community custody. The case went up on appeal.

At issue was whether the CCO had legal authority to search the content of Jardinez’s iPod when the CCO did not expect the search to yield evidence related to either of the known parole violations, Jardinez’s failure to appear, or his marijuana use.

The Court of Appeals reasoned that unless an exception is present, a warrantless search is impermissible under both article I, section 7 of the Washington Constitution and the Fourth Amendment to the U.S. Constitution. A trial court may suppress evidence seized from an illegal search under the Exclusionary Rule or the Fruit of the Poisonous Tree Doctrine.

The Court further reasoned that Washington law recognizes that probationers and parolees have a diminished right of privacy that permits a warrantless search based on probable cause. Parolees and probationers have diminished privacy rights because they are persons whom a court has sentenced to confinement but who are serving their time outside the prison walls. Therefore, the State may supervise and scrutinize a probationer or parolee closely.  Nevertheless, this diminished expectation of privacy is constitutionally permissible only to the extent necessitated by the legitimate demands of the operation of the parole process.

RCW 9.94A.631 provides exceptions to the warrant requirement. RCW 9.94A.631(1) reads:

If an offender violates any condition or requirement of a sentence, a community corrections officer may arrest or cause the arrest of the offender without a warrant, pending a determination by the court or by the department. If there is reasonable cause to believe that an offender has violated a condition or requirement of the sentence, a community corrections officer may require an offender to submit to a search and seizure of the offender’s person, residence, automobile, or other personal property.

Also, the Court based its decision principally upon the Sentencing Guidelines Commission’s comment about RCW 9.94A.631(1). The Commission wrote as its official comment behind the statute:

The Commission intends that Community Corrections Officers exercise their arrest powers sparingly, with due consideration for the seriousness of the violation alleged and the impact of confinement on jail population. Violations may be charged by the Community Corrections Officer upon notice of violation and summons, without arrest. The search and seizure authorized by this section should relate to the violation which the Community Corrections Officer believes to have occurred.

Based on the court’s reading of the statute and its counterpart comment, it found RCW 9.94A.631 did not authorize the CCO’s warrantless search of the contents of Jardinez’s iPod. It affirmed the trial court’s suppression of the evidence of Felipe Jardinez’s unlawful possession of a firearm.

My opinion? Good decision. I’ve posted similar blogs stating that CCO’s and probation officers exercise too much power over defendants. This certainly is one of those cases.

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. Gunderson: Court Decides Prior “Bad Acts” of Domestic Violence Are Inadmissible

911 Call, Assault, Domestic Violence, Evidence, Jury Trial, law enforcement, police, Prior Bad Acts, Washington Court of Appeals, , ,

Prior Bad Acts of DV | Law offices of Alexander Ransom

Good opinion. In State v. Gunderson, the Court of Appeals decided a trial judge improperly allowed evidence of the defendant’s “prior bad acts” of Domestic Violence under Evidence Rule (ER) 404(b) at the defendant’s jury trial.

Here, the State charged defendant Daniel Scott Gunderson with Domestic Violence Felony Violation of a Court Order for a September 2010 altercation between himself and Christina Moore, his ex-girlfriend. At trial, Ms. Moore testified that no assault occurred. Although she made no prior statements about the incident, let alone an inconsistent statement, the State sought to introduce evidence of a 911 Call to police and also Gunderson’s prior domestic violence against Ms. Moore to impeach her credibility and show that she was a “recanting” domestic violence victim who was unduly influenced by the defendant.

The trial judge admitted this evidence over Gunderson’s ER 404(b) objection. Gunderson argued that the trial court should have excluded evidence of his prior bad acts under ER 404(b).

Some background is necessary. Under ER 404(b), evidence of a defendant’s “Prior Bad Acts” is inadmissible for the purpose of proving a person’s character and showing that the person acted in conformity with that character. The same evidence may, however, be admissible for any other purpose, depending on its relevance and the balancing of its probative value and danger of unfair prejudice.

For evidence of prior bad acts to be admissible, a trial judge must ( 1) find by a preponderance of the evidence that the misconduct occurred, (2) identify the purpose for which the evidence is sought to be introduced, (3) determine whether the evidence is relevant to prove an element of the crime charged, and (4) weigh the probative value against the prejudicial effect.

Here, the Court of Appeals reasoned that the probative value of the prior DV evidence was outweighed by its significant prejudicial effect. It stated the following:

“Much like in cases involving sexual crimes, courts must be careful and methodical in weighing the probative value against the prejudicial effect of prior acts in domestic violence cases because the risk of unfair prejudice is very high. To guard against this heightened prejudicial effect, we confine the admissibility of prior acts of domestic violence to cases where the State has established their overriding probative value, such as to explain a witness’s otherwise inexplicable recantation or conflicting account of events. Otherwise, the jury may well put too great a weight on a past conviction and use the evidence for an improper purpose.”

The Court of Appeals further reasoned that the trial court’s error was not harmless, and that it is reasonably probable that the admission of the two domestic violence convictions materially affected the outcome of the trial. Consequently, and given the above analysis the Court of Appeals revered the defendant’s conviction and remanded the case to a new trial.

My opinion? This decision was very reasonable, even-handed opinion which was effectively based on the law. The logic makes sense. Because the victim did not make conflicting statements and did not recant and the State did not articulate some other compelling justification, the probative value of this evidence is limited in comparison to its significant prejudicial effect. Not only was it manifestly unreasonable for the trial court to admit this evidence, it was also reasonably probable that the jury would have reached a different outcome. 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. Button: Public Shaming Sentence Struck

Constitutional Rights, Cruel & Unusual Punishment, Due Process, felony, Jail, Sentencing, Shaming, Theft, Washington Court of Appeals, , ,

VERY interesting opinion. In State v. Button, the WA Court of Appeals says that a “shaming” sentence for a defendant convicted of is unlawful. More specifically, the Sentencing Reform Act does NOT support a sentencing court’s requirement that a defendant convicted of Theft First Degree must stand on a street corner holding a sign that states, “I stole from kids. Charlotte Button.” 

          

The defendant Charlotte Button was convicted for First Degree Theft for embezzling funds from a high school club. The trial court sentenced her to two months in jail and imposed an additional condition which intended to “send a message to the community.” The court explained the sentencing condition: “Before you begin your jail time, you are going to spend 40 hours standing at the corner of Wishkah and Broadway with a sign that says, ‘I Stole Money From Kida. Charlotte Burton.’ You’re going to do it two hours at a time twice a day from 7:00 to 9:00 in the morning and 4:00 to 6:00 in the afternoon.” Along with the “public shaming condition, the judge also imposed 60 days jail.

Ms. Button appealed the “public shaming” portion of her sentence on the grounds that it violated her Constitutional Rights under the First Amendment and 8th Amendment of the Constitution. In other words, her Free Speech rights were violated and the judge’s sentence was arguably Cruel & Unusual Punishment.

The Court of Appeals decided that although Washington’s Sentencing Reform Act allows a number of sentencing alternatives – including drug treatment for drug offenders and sexual deviance treatment for sex offenders – “public shaming” is not a designated sentencing alternative. “Nor does any other Sentencing Reform Act provision independently authorize the sign-holding condition, which clearly requires Button to affirmatively engage in some conduct. Thus, there is no statutory authority allowing the imposition of a sign-holding condition in the first instance.”

The Court did not address Ms. Button’s Constitutional arguments.

My opinion? Good decision. It’s well-grounded in statutory authority (and lack thereof). Sure, the defendant’s actions leading to the conviction were bad. Nevertheless, she paid her debt to society by serving a significant amount of jail (60 days). And I’m sure the court imposed restitution and court fines, as well. 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.

Washington State Patrol Upgrades its DUI Breath-Test Machines

Blood Test, Department of Licensing, Drug Offenses, DUI, Ignition Interlock Device, law enforcement, marijuana, misdemeanor, Search and Seizure, Terry Stop, Washington State Patrol, , ,

Measurement of the ethanol level with the Alcotest 9510 (Dräger,... | Download Scientific Diagram

The Washington State Patrol is replacing its old breath-test machines (BAC Machines) with sleek, fast, new $9,500 devices that are used to test drivers arrested on suspicion of driving under the influence of alcohol.

While both BAC machines can measure the alcohol in a person’s system by analyzing a breath sample, the much smaller and sleeker replacement features a touch screen and Microsoft Windows software and can process information faster.

The State Patrol will place 83 of the new Dräger Alcotest 9510 machines in police and sheriff’s stations, jails and State Patrol divisions in northeast and southeast Washington before enough are available to use statewide. The machines will be used to test drivers arrested on suspicion of driving under the influence of alcohol.

Whatcom County, Skagit County, Island County and San Juan County’s present BAC machines shall be replaced by the newer models.

Like the old devices, the new one measures alcohol in the lungs by analyzing exhaled breath. However, the new machines utilize a dry gas standard instead of a liquid solution to verify that the instrument is working properly. For years, liquid solutions have had to be mixed locally by scientists, monitored for temperature, and checked regularly by technicians. The Dräger’s dry gas contains a known concentration of alcohol, allowing the instrument to verify that a suspect’s breath alcohol is being measured accurately and reliably, the State Patrol says.

Only troopers, sheriff’s deputies and police officers certified in the Alcotest will be allowed to use the machines.

My opinion? Competent defense attorneys should investigate whether the police officers who arrest our clients for DUI and later operate these machines on our clients are, in fact, certified to operate these machines. If they’re not, then perhaps the BAC result can be suppressed.

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

WA Attorney General Says Police Do NOT Need Consent to Record Citizen Activities With Body Cameras

Bellingham, Body camera, Evidence, felony, law enforcement, police, Privacy, Search and Seizure, , ,

Axon rolls out police body cameras with live-streaming capability - GeekWire

Bad decision.

Conversations between law enforcement and members of the public may be recorded on police body cameras without citizen consent, according to an opinion issued today by Washington State Attorney General’s Office. Here’s the opinion is linked below, as well as news articles describing the recent decision:

The AG’s opinion said conversations between law enforcement and the public are generally considered public, even if they take place inside a private residence. Washington law requires two-party consent to record private conversations, but that standard does NOT apply to public ones.

Legal precedent is less clear about an officer recording a conversation between two members of the public, since no case law addresses the subject directly. But the AGO said the Washington State Supreme Court has “strongly indicated” conversations between two people are not private when they know a police officer is present.

Recently, Bellingham Police officers are being outfitted with body cameras, which would record all official interactions with citizens, even inside private residences.

The main issues of the AG’s opinion are stated below:

  1. The Washington Privacy Act, RCW 9.73, does not require the consent of a law enforcement officer to use body cameras attached to police uniforms. A local collective bargaining agreement, however, might limit or prohibit such use.
  2. Conversations between law enforcement officers and members of the public are not generally considered private for purposes of the Privacy Act.
  3. As a general matter, the Privacy Act does not require a law enforcement officer to cease recording a conversation at the request of a citizen, because such conversations are not private to begin with.
  4. In order to use a recording as evidence in a criminal or civil case, the recording would be subject to the same laws and rules governing all evidence, including the requirement that the chain of custody be established to prove no tampering has occurred. Laws relating to the retention and disclosure of public records, including records retention schedules, would govern retention and disclosure of recordings.
  5. RCW 9.73.090 does not limit the use of body cameras to the use of such cameras in conjunction with vehicle-mounted cameras.   

My opinion? I was on board with the body cameras until the AG’s Office basically gave police officers permission to circumvent the privacy rights of citizens. Look, the average citizen on the street does NOT assert their Constitutional right to refuse to speak to police officers. Nor does the average citizen refuse to grant an officer’s request to search the citizen’s home or car.

Police can be very persuasive in exercising their authority. So this AG opinion said conversations between law enforcement and the public are generally considered public? Even if the conversations are NOT consensual and take place inside a private residence? Bad 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.

Bellingham Police Start Using Body Cameras

Bellingham, Body camera, Evidence, law enforcement, police, Search and Seizure, , ,

Three ways police can use body cameras to build community trust | Urban Institute

Finally, a step in the right direction.

In an effort to reduce use-of-force complaints, Bellingham Police officers are now wearing Body-Worn Cameras to record audio and video of their interactions with the public. The department is among the first to use the new equipment that now allows citizens to see crimes from an officer’s perspective.

Officers are wearing two cameras — one on their chests and another mounted on collars, glasses or hats.

The Bellingham Police Department has provided officers with guidelines for when they should activate the cameras. Some include traffic stops, arrests, or situations involving aggressive suspects.

Police don’t need to ask for permission to record  if they’re in public but they will tell you if the camera is on. However, if an officer is in a private residence he or she is required to get the homeowner’s permission to record.

My opinion? Excellent decision. My hat is off to the Bellingham Police for making a pro-active decision toward this effort. I strongly believe having body cameras makes EVERYONE — both cops and citizens — behave better. even better, the cameras should provide evidence of whether police misconduct happens in some cases. Very good.

My only concern is the privacy issues. Will police will secretly turn these cameras on when searching people’s houses? And if so, can the police attempt to use the surveillance video captured by the cameras as evidence of possession of contraband/weapons? As long as police are informing citizens that conversations and searches are being recorded (and as long as the police get the citizen’s consent to search ON CAMERA) then the searches are probably not intrusive and/or violations of a citizen’s constitutional rights. We’ll see.

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. Reeves: Retail Theft Charges Dismissed With Knapstad Motion

Evidence, felony, Knapstad Motion, misdemeanor, Retail Theft, Theft, Washington Court of Appeals, , ,

What Is Retail Theft? - The Law Advocate Group

Good case. In State v. Reeves, the WA Court of Appeals upheld a trial court’s decision to grant a defendant’s Knapstad motion to dismiss a charge of Retail Theft With Extenuating Circumstances.

The Defendant was accused of using  a pair of ordinary pliers to remove an anti-theft security device at a store. He was caught and charged with Retail Theft With Extenuating Circumstances. His attorney argued a Knapstad motion to dismiss on the basis that ordinary pliers were not “an item, article, implement or device designed to overcome security systems including, but not limited to, lined bags or tag removers.

The judge granted the motion and reasoned that including common tools into the definition of devices designed to overcome security systems would render every act of removing a security device an extenuating circumstance. The State appealed.

Some background on Knapstad motions is necessary. In State v. Knapstad, 107 Wash.2d 346 (1986), the Supreme Court created a procedure similar to summary judgment in a civil case, under which a criminal defendant can, by way of pre-trial motion, challenge the sufficiency of the prosecution’s evidence. In essence, if the prosecution cannot show by competent affidavit that it has a prima facie case of guilt on all elements, the court must dismiss the charge.

In evaluating sufficiency of evidence, the court looks at the undisputed material facts already in the court record from the finding of probable cause, and ascertains whether as a matter of law, the prosecution has established a prima facie showing of guilt. For more information on Knapstad Motions, please read my Legal Guide titled, Dismissing Cases Through Knapstad Motions.

Likewise, some background on the felony charge of Retail Theft With Extenuating Circumstances. Under former RCW 9A.5.360(1)(b), an extenuating circumstance for retail Theft charges includes being in possession of an item, article, implement, or device designed to overcome security systems including, but not limited to, lined bags or tag removers.

 Here, the Court of Appeals affirmed the trial court’s dismissal pursuant to the defendant’s Knapstad motion. They reasoned the criminal statute was ambiguous about the definition of the class of “tools” which created the aggravating factor of “Retail Theft.”

Also, the “Rule of Lenity” made another basis for upholding the trial court’s decision: “Because the language of former RCW 9A.56.360(1)(b) is ambiguous, we first turn to the principles of statutory construction, the legislative history and the statutory scheme to determine the legislature’s intent.

If this analysis still does not clearly show the legislature’s intent, the Rule of Lenity requires us to interpret the statute in Reeve’s favor.” Here, the Court ruled that the principles of statutory construction and an analysis of the legislative history and statutory scheme do not resolve the ambiguity of the statute in the State’s favor. For these reasons, the Court of Appeals upheld the trial court’s decision.

My opinion? Good decision. Both the trial court and the court of Appeals got it right.

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.