Tag Archives: Skagit County Criminal Defense Attorney

Bellingham Police Get Software to Map Crime Patterns

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This screen-grab is a sample interactive map that shows criminal activity in the downtown Seattle area. Bellingham is buying similar Predictive Policing Software.

According to the Bellingham Herald, the Bellingham Police Department plans to buy “Predictive Policing Software” that will map crime patterns in the city and help officers decide where to patrol.

For those who don’t know, “Predictive Policing Software” is computer technology which uses advanced mathematics and algorithms to predict the times, locations and “types” of many crimes in any given jurisdiction. Police agencies can use this software to predict property crimes, drug incidents, gang activity, and gun violence, as well as traffic accidents.

The software, by Bair Analytics, will help compile reports currently put together by the department’s current crime analyst, who plans to retire soon.

According to the Bellingham Herald, officers currently use similarly compiled crime information to help detect criminal patterns and choose where they should focus their efforts. For example, if a series of home break-ins has been reported in a specific neighborhood, and officers see that similar methods were used to get into the homes, they start looking at what days and times those crimes happened to try to prevent another or catch the criminal in the act.

“A few years back we had a long series of rooftop burglaries and it took a while to catch the guys that were doing it,” Vander Yacht said. “We had to figure out the best times and places for them to do that.”

The software also allows interested citizens to sign up for alerts and view an interactive map of criminal activity in their area. The information included on the map is somewhat limited to protect the privacy of victims.

The map, which can be found at raidsonline.com, currently shows information for 15 Washington cities, including Seattle, Richland and Pasco. RAIDS stands for Regional Analysis and Information Data Sharing.

My opinion? Interesting technology. I don’t see if it violates people’s Constitutional Rights or infringes on their privacy. There shouldn’t be any problem with the implementation of this technology as long as the information does not target a particular individual.

Still, Big Brother only gets better at watching  . . .

Bellingham is buying predictive policing software that will map crime patterns in the city and help officers decide where to patrol. The software, by Blair Analytics, will essentially replace the Bellingham Police Department’s current crime analyst.

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. Strange: Was the Jury “Tainted” or Impartial?

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In State v. Strange, the WA Court of Appeals Division II decided the defendant’s right to a fair and impartial jury was not violated by a prospective jurors’ statements concerning their own prior experiences with child molestation.

Here, defendant George Strange was accused of Child Molestation Second Degree and Voyeurism. from 2011 to 2013, Strange lived with his wife and his wife’ s children, who are juveniles. Here, juvenile J.M. was 12 years old when Strange allegedly fondled her breasts one night. He explained he was giving her a breast examination.

During jury selection, the court and attorneys asked the prospective jurors about their personal experiences with child molestation. Although most of the jurors had no personal experience with child molestation, almost one-third of the jurors knew someone who was either a victim or had been charged with child molestation. In response to the court’ s questioning, juror no. 54 stated,

JUROR: “Um — what I said before, like, I know people that I know. Like it’ s not an easy accusation to make. Like, it is hard for people (inaudible). It’ s like if accusations were made there’ s something behind that . . . I don’ t — like, I don’t have a ton of experience but it has just been my experience people don’ t make that accusation, you know, for no reason. Like, I feel like if an accusation was made there had to be something that had happened.”

Juror no. 54 was excused for unrelated hardship reasons.

During trial, other witnesses testified to Strange’s odd behavior around J.M. Additionally, the State played a recorded video of Strange being interviewed by a police detective who commented on Strange’s behavior during the interview. Finally, Strange did not call any witnesses nor did he testify. At the end of trial, Strange was found guilty on all counts.

On appeal, Strange argued that his right to a fair trial by an impartial jury was violated because of prospective jurors’ statements concerning their own prior experiences with child molestation, either in their families or among friends or acquaintances, which tainted the entire jury venire.

The court rejected Strange’s arguments. It reasoned that article I, § 22 of the Washington Constitution guarantees a criminal defendant the right to a fair trial by unbiased jurors.” Also, the Sixth Amendment to the United States Constitution also guarantees the right to a fair trial by impartial jurors. Here, no prospective juror professed any expertise about sexual abuse cases. Therefore, there is no concern about a prospective juror with more credible, authoritative knowledge tainting the rest of the jury pool.

Second, most jurors were merely questioned about their experiences with child molestation and asked if they could remain impartial. Some jurors admitted to a potential bias, most said they could apply the court’ s instructions impartially, and two prospective jurors asked for individual voir dire, preferring not to talk about their experiences in front of the rest of the jury pool. Consequently, the Court of Appeals decided that Strange received a fair trial by an impartial jury.

Finally, the court rejected Strange’s argument that his defense attorney was ineffective because he failed to object to the admission of Strange’s recorded interview with police. The court reasoned that because defense counsel’s failure to object was a legitimate trial tactic, it cannot be said that Strange’ s trial counsel’ s performance was deficient. Therefore, his claim for ineffective assistance of counsel fails. The decision of Strange’s attorney to not play the video was a legitimate trial tactic, and did not amount to ineffective assistance of counsel.

My opinion? Oftentimes, during jury selection, prospective jurors say things out loud which may appear to discredit the defendant, especially when the charges are particularly galvanizing. A defense attorney must be cautious in proceeding with these jurors. A good technique is to ask the juror to extrapolate “what they mean” if the juror says they have difficulty being objective, and/or if the juror says the defendant “must be guilty of something.” The attorney can strike the juror for cause because the juror could be biased against the defendant.

Still, it’s difficult to “unring the bell,” so to speak, when a prospective juror says controversial things which may hurt the defendant’s chances at trial if the rest of the jury pool believes that juror’s statements. This is the essence of “tainting the jury,” which is reversible error and should be avoided at all costs. In response, another good tactic is to inquire if other potential jurors feel the same as the juror who aired their grievances. Find someone shaking their head “No.” Ask them why.

Chances are, they’ll say something about giving the defendant a fair trial, or presumption of innocence, or something like that. Test the waters. Guide the jurors back toward their oath that they MUST presume the defendant not guilty throughout trial. Remind them that if they serve as jurors, they’re under oath to withhold their personal biases and reserve judgment until after hearing all of the 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.

Is Texting While Driving the New DUI?

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Police Officer Posing As Construction Worker

Recently, Marietta Police dressed up as a construction workers at a busy intersection to catch distracted drivers who were text messaging while driving. The police go as far as busting drivers who are texting while stopped at red lights. It appears that going undercover is an effective way to bust drivers texting, tweeting or checking emails behind the wheel.

“What we’ve done here is we’re able to put officers in the roads so we’re able to get close enough almost inside their cars so we can look down and see exactly what they’re doing on their phones,” said Marietta police Officer Nick Serkedakis. “I really think this is the DUI of the future. Impairment is still a problem, but this distracted driving is killing as many people as drunk drivers.”

The tickets are $150 and one point on your license.

Can a program like this – one where WA police officers pose as construction workers at certain locations to observe texting drivers – be implemented in Washington State?

Probably not.

This program is very similar to DUI checkpoints, which were basically outlawed in 2008. For those who don’t know, sobriety checkpoints (also called DUI checkpoints) are locations where law enforcment officers are stationed to check drivers for signs of intoxication and impairment. Many jurisdictions utilize sobriety checkpoints as part of their larger drunk driving deterrance program. Due to legal issues surrounding their use, not all states conduct sobriety checkpoints. Some states have laws authorizing their use. Others forbid them or are silent on the issue.

According to the Government’s Highway Safety Association (GHSA), Washington State is one of only 12 states which do not conduct DUI checkpoints. The story is interesting. In 2008, then-Governor Christine Gregoire wanted the state Legislature to authorize police to set up sobriety spot checks, a practice unseen in Washington since the state Supreme Court declared it unconstitutional in 1988 under City of Seattle v. Messiani.

Some background is necessary. In Messiani, the Washington State Supreme Court decided that the Seattle Police Department’s sobriety checkpoint program was constitutional. In short, police officers set up roadblocks where all oncoming motorists were stopped. The police lacked warrants and any particular suspicion of criminal activity. The City of Seattle argued that the State’s interest in the legal operation of vehicles outweighs any privacy interest under Article I, Section 7 of the WA Constitution. Ultimately, the Washington State Supreme Court concluded that the City of Seattle’s position was unlawful, and held that sobriety checkpoints were unconstitutional.

At any rate, Governor Gregoire’s proposed DUI Checkpoint legislation failed. The ACLU even got involved. In the end, Legislators simply lacked the political will overturn the WA Supreme Court’s City of Seattle v. Messiani. 

Unlike Washington, however, Georgia has  actively legalized DUI checkpoints. They are conducted weekly and aggressively; and upheld under the State of Georgia’s Constitution.

Due to the differences, I can’t see WA police officers successfully pulling off an anti-text messaging campaign like the Georgia police officers can. This campaign is too similar to DUI checkpoints, which are illegal in Washington State.

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.

New Smartphone App Warns You When You’re Too Stoned To Drive

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Detects Marijuana Impairment

Technology. Gotta love it.

Canary has created a smartphone app which checks your mental and physical performance levels after ingesting marijuana and before driving. The app has gained widespread popularity and is sanctioned by NORML, an organization whose mission is to move public opinion to legalize the responsible use of marijuana by adults.

The app is straightforward: after logging in, it quickly subjects users to four basic tests: (1) a memory challenge where you have to recall six numbers that briefly appear on screen, (2) a reaction-time game where you have to quickly identify a particular icon from a series of images that pop up, (3) a time-perception assessment where you have to count off 20 seconds in your head as accurately as possible, and (4) a balance test that uses your phone’s accelerometer to gauge your ability to stand motionless on one foot.

After taking the tests, the app compares your results to a personalized performance baseline based on your past attempts at the app or norms built into the program.

Canary then determines whether your performance is impaired. At the end of the three-minute session, a green light means you’re not impaired, a yellow light means you should reconsider driving, and a blinking red light means you are impaired.

“This tool ideally allows cannabis consumers to take control and identify when they present a traffic-safety risk or when they may be under the influence,” says Paul Armentano, deputy director of NORML. “I believe this is information that all responsible marijuana users will want to know.”

The secret to Canary is that it doesn’t focus on potential markers of impaired performance, like levels of THC in your breath, but instead on performance itself. And since it launched weeks ago, Canary has been downloaded more than 10,000 times and is attracting attention from major marijuana players.

My opinion? Canary moves in the right direction. When it comes to marijuana use, drug tests such as urinalyses or blood tests are highly retrospective. The best those tests can do is assess lifestyle and acknowledge that the perpetrator consumed pot at some time recently.  However, these tests have absolutely no impact on whether you can perform. It’s unfair to prosecute someone who might have smoked a joint on Thursday and tested positive on Monday. So yes, testing someone’s performance before driving is absolutely critical to discovering if they’re too stoned to drive.

There’s a social justice incentive behind accurate marijuana impairment tests as well: Since African-Americans are far more likely to be pulled over and arrested for marijuana offenses than whites, an objective way to determine who’s high and who’s not could help level the playing field.

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. Z.U.E.: Terry Stop Based on Unreliable Informant Tip Was Unlawful

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Good decision.

In State v. Z.U.E., the Washington Supreme Court decided that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. Here, there wasn’t.

The facts show that Z.U.E. was a juvenile passenger in a car stopped by police after several 911 callers reported a bald shirtless man seen carrying a gun. Another caller reported a 17 year old female gave the gun to the shirtless man. Based on these tips, police stopped a car believing that the female was in the car. They ordered Z.U.E out of the vehicle, searched him, and found marijuana on his person. The officers did not find any guns, nor did they find the bald, shirtless subject.

The state prosecuted Z.U.E for Unlawful Possession of a Controlled Substance and Obstructing a Law Enforcement Officer. At his trial, Z.U.E. argued a CrR 3.6 Motion to Suppress and essentially challenged the Terry stop and subsequent search incident to arrest. The police who stopped ZUE did not know how many 911 callers there were or the identities of the callers and did not corroborate the report regarding the female with a gun.  The trial court denied the motion. Z.U.E. was found guilty of the drug charge and acquitted on the Obstructing charge. Z.U.E. appealed. The WA Court of Appeals reversed, holding that the 911 calls lacked sufficient “indicia of reliability” to justify the stop. Again, the case went up on appeal – this time, by the State –  to the WA Supreme Court.

The WA Supremes affirmed the WA Court of Appeals and suppressed the evidence. In reaching their decision, the Court discussed Terry stops. In challenging the validity of a Terry stop, article I, section 7 of the WA Constitution generally tracks the U.S. Constitution’s  Fourth Amendment analysis. That said, warrantless seizures are presumed unreasonable, and the State bears the burden of establishing that the seizure falls within one of the carefully drawn exceptions to the warrant requirement. One such exception is a brief investigatory detention of a person, known as a Terry stop. For a Terry stop to be permissible, the State must show that the officer had a “reasonable suspicion” that the detained person was, or was about to be, involved in a crime.

They court further reasoned that when police stop an individual based on an informant’s tip, there must be some “indicia of reliability” based on the totality of the circumstances. There must be either (1) circumstances establishing the informant’s reliability or (2) some corroborative observation by the officers that shows the presence of criminal activity or the informer’s information was obtained in a reliable fashion. Here, the police did not have any articulable reason to suspect any of the passengers in the car of criminal activity. The seizure of Z.U.E was unlawful and the evidence obtained as a result of that seizure should have been suppressed.

My opinion? Good decision. This was a straightforward application of the law. The informant tips were unreliable. Also, Z.U.E.’s involvement on the 911 calls and firearms was so attenuated that it was virtually irrelevant. Well done, 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.

NY Politician Wants Ignition Interlock Devices in All New Vehicles

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Today, U.S. Representative Kathleen Rice announced that she will introduce legislation requiring all American automakers to equip new cars with ignition interlock device (IID) technology which detects a driver’s blood alcohol content (BAC) and prevents the engine from starting if the driver’s BAC is above the legal limit.

While laws vary across the states, ignition interlock devices are widely required for individuals who are convicted of DUI. A recent study conducted by researchers at the University of Michigan found that requiring interlock technology in all new vehicles would, over a 15 year implementation period, prevent an estimated 85 percent of drunk driving-related deaths and 84-89 percent of drunk driving-related nonfatal injuries.

The study says that preventing deaths and injuries resulting from DUI and other alcohol/drug related accidents would save an estimated $343 billion over 15 years. Additionally, the cost of installing the IID technology would be recovered in first 3 years of implementing the devices into cars. Finally, the study found that young drivers would benefit the most.

Representative Rice said the following about her legislation:

“Advancing the progress we’ve made combating drunk driving demands bold action. It demands that we take a stand and say we refuse to keep letting drunk drivers take 10,000 lives each year. We refuse to keep seeing families torn apart when we know we can do more to prevent it. Strict enforcement is important, holding drunk drivers accountable is important, but we can and must do more to stop drunk drivers from ever hitting the road in the first place. That’s why I’m working on legislation to require ignition interlock devices in all new cars. This technology saves lives, it saves money, and I’m going to fight to make it standard equipment in American cars.”

Representative Rice previously served as a Prosecutor of Nassau County, NY, where she received national acclaim for her efforts to combat drunk driving, securing Long Island’s first DWI-related murder convictions and helping to lead a statewide overhaul of New York’s DWI laws. Rice was dubbed by the New York Daily News as “the state’s toughest DWI prosecutor,” and recently received a Lifetime Achievement Award from Mothers Against Drunk Driving (MADD).

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.

In re Detention of H.N.: Screenshots of Text Messages Are Admissible Evidence

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In In re Detention of H.N., Division I of the WA Court of Appeals decided that E-mailed screenshots of text messages that a medical expert used as part of her testimony were properly admitted as substantive evidence at trial.

H.N. is a college student who was less than 21 years of age at the time of the events leading to this case. She worked at part time jobs, and she had two roommates who worked with her at one of her jobs. After midnight on a night in May 2014, H.N.’s two roommates returned home to discover her unconscious on the floor and lying in a pool of her own vomit. Nearby there was an empty bottle of wine, an empty bottle of Nyquil, and a partially empty bottle of vodka. H.N. briefly awoke but then passed out again. One roommate called 911, and medics responded to the scene.

Afterward, H.N. was involuntarily detained for mental health treatment.

Thereafter, the State petitioned for up to 14 days of additional inpatient treatment, pursuant to the involuntary treatment act, RCW 71.05. For those who don’t know, detainees like H.N. may petition their local superior courts to be released from detention and observation. However, courts won’t release detainees if the detainee is likely to gravely injure themselves or someone else upon release.

On May 7, 2014, the court conducted a hearing on H.N.’s petition for release. At the hearing, the State presented the testimony of a psychologist who evaluated H.N. at the hospital. The psychologist testified as an expert. Part of her testimony was based on what purported to be e-mailed screenshots of text messages between H.N. and her boyfriend, “A.” These messages were exchanged on the night her roommates found her unconscious on the floor, lying in a pool of her vomit. The psychologist read several of these text messages into the record. Over H.N.’s objection on the basis of lack of foundation, the court admitted this evidence.

For those who don’t know, the “lack of foundation” objection most often applies to exhibits or pieces of evidence other than testimony that are brought into court without an explanation of where they came from or what they represent.  Foundation is usually laid by having a witness testify as to what the object is.

At any rate, and after the hearing, the trial court found that H.N. suffered from a mental disorder and presented a likelihood of serious harm to herself. The court entered an order committing H.N. for involuntary treatment for a period of 14 days. H.N. appealed the court’s decision to detain her.

The WA Court of Appeals took the case and decided the issue of whether the trial court abused its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that the State’s expert witness used during her testimony.

The Court decided that the text message evidence was properly authenticated pursuant to ER 901(b). For those who don’t know ER 901(b) is an evidence rule which allows or disallows evidence depending on whether the evidence is properly “authenticated” (or not).

Here, the Court of Appeals gave many reasons why H.N.’s text messages were, in fact, authentic. She gave out-of-court acknowledgments that she sent the messages, the identifying information at the top of the text messages showed that she was the sender of the messages, her phone number matched the contact information in her medical chart, the messages consistently reference names of people in her life, the messages were consistent with certain events in H.N.’s life, and the timing of the text messages were consistent with her hospitalization on the night of the incident.

Consequently, the Court of Appeals affirmed the trial court’s detention of H.N. and concluded that text message evidence was sufficient to support the trial court’s finding that H.N. posed a likelihood of serious harm to herself.

My opinion? The Court’s logic appears sound. Although the text messages are inadmissible Hearsay under Evidence Rule  (ER) 801, hearsay is, in fact, admissible under certain circumstances.  Also, courts may consider evidence that might otherwise be objectionable under other rules of evidence. They can rely upon such information as lay opinions, hearsay, or the proffered evidence itself in making its determination. Such information must be reliable. Here, ER 901 allowed the State to authenticate the text message evidence. It was reliable. Therefore, it was admissible.

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. Abitia: Sexual Assault Advocate’s Testimony Was Improper

Bellingham Defense Attorney, Drug Offenses, felony, Jury Trial, Perpetrator Profile Testimony, Rape, Sex Crimes, Washington Court of Appeals, Whatcom County Criminal Defense, , ,

Court Says Eyewitness Testimony in Crash Case Was Improper but Harmless | The Legal Intelligencer

In State v. Abitia, the WA Court of Appeals Division I decided that it was improper testimony and reversible error that an expert witness for the State – a Sexual Assault Advocate, no less – testified that people who molest children often do not tell the truth and when subjected to polygraph testing and often admit to committing more sexual abuse than the child victim reported.

The facts were such that defendant Raymond Abitia went to trial on one count of Rape of a Child in the Second Degree and one count of Distribution of a Controlled Substance to a Minor. The alleged victim was Abitia’s daughter, KM. At trial, KM disclosed the abuse after an incident in Skagit County that occurred shortly after she turned 14 years old.

One of the State’s witnesses was Joan Gaasland-Smith, the sexual assault case specialist – also called a Sexual Assault Victim Advocate – for the Whatcom County Prosecutor’s Office. Gaasland-Smith was qualified as an expert to discuss child sex abuse in general. For those who don’t know, “Sexual Assault Victim Advocates” are professionals trained to support victims of sex crimes. Advocates offer victims information, emotional support, and help finding resources. Sometimes, advocates attend court and pretrial interviews with victims. Advocates may also contact organizations, such as criminal justice or social service agencies, to get help or information for victims. Some advocates staff crisis hotlines, run support groups, or provide in-person counseling.

Gaasland- Smith testified that it is not unusual for children to delay disclosure. She said while there is no single reason that applies in every case, there are many reasons a child may not immediately disclose. A perpetrator may have offered the child rewards, money, or special attention in exchange for silence. The child may value the relationship with the perpetrator, fear being seen as abnormal, or think that the sexual contact feels good.

Up to this point, there was nothing particularly objectionable about Gaasland-Smith’s testimony. KM did not disclose abuse until the Skagit County incident and even then she resisted disclosing it to the police. Abitia’s defense strategy was to challenge KM’s credibility. It is generally permissible for a jury to hear expert testimony explaining why delayed disclosure does not necessarily mean the victim lacks credibility.

But in response to the prosecutor’s next question, Gaasland-Smith began to veer toward generalities about perpetrators. She said, “Kids can be told by perpetrators that, urn, that other adults believe adults, they won’t necessarily believe a child.” Abitia objected to “this whole line of questioning as to what do other sexual predators do. Abitia’s attorney objected to the testimony.

The court overruled the objection, stating that “what kids can be told by perpetrators … is appropriate testimony for an expert witness.” The court warned the prosecutor to “be very cautious so that generalization does not directly or indirectly suggest to the jury that that is what has happened” in this case.

Gaasland-Smith went on to discuss reasons why children may be afraid to disclose. She testified that most of the time, children do not disclose everything all at once. When asked about the basis of her knowledge, she answered that sexual deviancy evaluations show it is common to discover that “more happened than the child ever told.” In the course of this answer, Gaasland-Smith testified that a sexual deviancy evaluation includes a lie detector test because “oftentimes people who do this kind of thing don’t tell the truth.”

The jury convicted Abitia as charged. The case was appealed on the issue of whether the expert witness’s testimony was improper.

The Court of Appeals reasoned “Perpetrator Profile Testimony” is improper because it “clearly carries with it the implied opinion that the defendant is the sort of person who would engage in the alleged act, and therefore did it in this case too.” Gaasland-Smith’s line of testimony about what perpetrators do should have been cut off when the objection was first raised. Her opinion that sex offenders lie about their conduct implied that Abitia was lying when he denied having sexual contact with KM. No witness may testify as to an opinion on the veracity of the defendant, either directly or inferentially.

The Court also reasoned that Gaasland-Smith’s testimony that offenders can be trusted to tell the truth only when they are subject to lie detector tests was also unduly prejudicial. Ordinarily, polygraph evidence is inadmissible absent stipulation by both parties because the polygraph has not attained general scientific acceptability. Therefore, Gaasland-Smith’s improper reference to lie detectors bolstered her opinion that sexual offenders, as a class, are liars.

The Court of Appeals reversed the conviction.

My opinion? Excellent decision. It indeed invades the providence of the jury for experts to discuss “Perpetrator Profile Testimony” in the context of jury trials. It sways jurors far too much, and leads to unfair jury trials like the one above.

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. Elkins: Officers Need Not Re-Advise Miranda in All Cases

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How Long Do Miranda Rights Last? | Wallin & Klarich

In State v. Elkins, the WA Court of Appeals decided that whether the officers have scrupulously honored the defendant’ s right to silence and right to counsel under Miranda must be determined on a case -by -case basis, and that there is no bright-line rule requiring police officers to fully re-advise previously Mirandized suspects when reinitiating interrogation.

Yakima County deputies received a tip that defendant Eugene Elkins had killed his girlfriend Kornelia Engelmann. Yakima County deputies arrived and arrested him. He was advised of his Miranda rights. For those who don’t know, police officers must inform defendants of their Miranda rights once police place a defendant in custody and/or conduct investigations via questioning the defendant. The Miranda rights are stated as follows:

“You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Miranda protects a defendant’s Fifth Amendment rights against self incrimination, and may incline defendants to stop talking and/or immediately seek the advice of an attorney. Once a defendant asserts their Miranda rights, the police MUST stop questioning the defendant. And, generally speaking, police must repeat and re-inform defendants of their Miranda rights if questioning continues at a later time; and/or defendants change their minds and want to speak to the police.

Here, at around 3;30 p.m., Yakima County deputies advised Elkins of his Miranda rights before arresting him. Elkins declined to make a statement, and the Yakima County deputies did not question him further. They took him into custody.

Later, the police again attempted to interview Elkins at about 8: 30 PM. Although they did not re-advise Elkins of his Miranda rights, police asked Elkins if he had been advised of these rights, if he remembered them, and if he understood those rights were still in effect. After Elkins confirmed that he recalled being advised of his Miranda rights and that he understood those rights were still in effect, Elkins agreed to talk to the deputies. In short, he informed the police that he and Ms. Engelmann had a verbal argument which led to a physical altercation.

When the deputies commented on the extensive bruising on Engelmann’ s body and asked Elkins if he had kicked her, hit her with something, or hit her with a closed fist, Elkins said that he did not want to talk to the deputies any longer and requested an attorney. The deputies ended the interview.

On June 7, the very next day, Elkins gave a full written statement to police after they re-advised him of his Miranda rights. In the statement, he admitted to killing Engelmann. Elkins was subsequently charged with Murder in the Second Degree.

The case proceeded to a jury trial. Before trial, Elkins moved under CrR 3.5 to suppress the statements he made to the police on June 6 and June 7. However, the trial court admitted all of Elkins’ statements. At trial, Elkins was found guilty of Murder in the Second Degree. He appealed his conviction to the WA Court of Appeals Division II.

In rendering its decision, the Court acknowledged that fully re-advising a suspect of his Miranda rights is clearly the best practice when resuming questioning of a suspect who has asserted his right to silence. However, the Court also said there is no bright-line rule that law enforcement officers must always fully re-advise a defendant of his or her Miranda rights. In addition, they said that the issue of whether a defendant’ s rights have been scrupulously honored must be determined on a case-by-case basis.

The Court further reasoned that under the totality of the circumstances, Elkins statements were not coercively obtained by police. The facts show that ( 1) the Yakima deputies ceased questioning Elkins immediately when he asserted his right to silence, (2) no law enforcement officer attempted to interrogate Elkins for a significant period of time, five hours, before his subsequent contact with the police, ( 3) no law enforcement officer engaged in any coercive tactics, and (4) the police did not interrogate Elkins until after they confirmed that he had been read his rights, that he recalled those rights, and that he understood those rights were still in effect. The court also said the following:

“[T]he subsequent interrogation is proper if the State has shown that the defendant knowingly and voluntarily waived those rights given the totality of the circumstances, not whether the subsequent contact was preceded by law enforcement fully re-advising the defendant of his or her Miranda rights. When this and the other factors . . . are met, the officers have scrupulously honored the defendant’ s rights.”

Finally, the Court of Appeals reasoned that Elkins’ June 6 waiver was knowing and voluntary under the circumstances. They also reasoned that his statements made during transport and June 7, 2014 statements were also admissible because Elkins initiated the relevant conversation following his assertion of his right to counsel and then knowingly and voluntarily waived his Miranda rights. The Court of Appeals upheld his conviction.

My opinion? My heart goes out to the victim’s friends and family. I sincerely hope they find comfort in the Court of Appeals’ decision. However, I disagree with the decision. When it comes to protecting people’s constitutional rights, bright-line rules work best. And its always been a time-tested rule that police MUST re-advise suspects of their Miranda rights, especially under circumstances like this.

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.

Ohio v. Clark: Child Victim Hearsay Statements Are Admissible

Bellingham Defense Attorney, Child Competence, Constitutional Rights, Domestic Violence, Due Process, Evidence, felony, Sixth Amendment, United States Supreme Court, Whatcom County Criminal Defense, , ,

 

In Ohio v. Clark, the United States Supreme Court ruled that statements made by the 3-year-old victim to his preschool teacher were properly admitted at trial, despite the fact that the 3-year-old did not testify.

Here, defendant Darius Clark sent his girlfriend away to engage in prostitution while he cared for her 3-year-old son L. P. and 18-month-old daughter A. T. When L. P.’s preschool teachers noticed marks on his body, he identified Clark as his abuser. Clark was subsequently tried on multiple counts related to the abuse of both children. At trial, the State introduced L. P.’s statements to his teachers as evidence of Clark’s guilt, but L. P. did not testify. The trial court denied Clark’s motion to exclude the statements under the Sixth Amendment’s Confrontation Clause. A jury convicted Clark on all but one count. The state appellate court reversed the conviction on Confrontation Clause grounds, and the Supreme Court of Ohio affirmed. The U.S. Supreme Court stepped in to resolve the matter once and for all.

For those who don’t know, The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions.

Here, the U.S. Supreme Court reasoned that L. P.’s statements at trial – which were introduced as hearsay evidence through the testimony of a school counselor – did not violate the Confrontation Clause.

In reaching its decision, the Court said it’s prior decision in Crawford v. Washington held that the Confrontation Clause generally prohibits the introduction of “testimonial” statements by a non-testifying witness, unless the witness is “unavailable to testify, and the defendant had had a prior opportunity for cross-examination.” Additionally, a statement qualifies as testimonial if the “primary purpose” of the conversation was to “create an out-of-court substitute for trial testimony.” The Court addressed why L.P.’s statements were not “testimonial:”

“L. P.’s statements were not made with the primary purpose of creating evidence for Clark’s prosecution. They occurred in the context of an ongoing emergency involving suspected child abuse. L. P.’s teachers asked questions aimed at identifying and ending a threat. They did not inform the child that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation was informal and spontaneous. L. P.’s age further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause”

“Finally, although statements to individuals other than law enforcement officers are not categorically outside the Sixth Amendment’s reach, the fact that L. P. was speaking to his teachers is highly relevant. Statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonialthan those given to law enforcement officers.”

Furthermore, the Court found it irrelevant that the teachers’ questions and their duty to report the matter had the natural tendency to result in Clark’s prosecution. “Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution.”

My opinion? I fear a slippery slope. Child victims are notoriously difficult. The first challenge is getting an interview. If defense counsel succeeds, they must be prepared to interview the child victim with a legion of DV advocates, investigating officers, parents, family friends and the Prosecutor attending the interview. And by this time, the matter has been discussed ad nauseum between the child and the aforementioned. Consequently, by the time the interview happens, the child has essentially been trained and coached to memorize a script and stick with it.

Now, with this opinion, it seems that school counselors can testify to statements made by the child victim., and that the child not even be made available to testify. Under the Washington Rules of Evidence – which strictly follow the Federal Rules of Evidence – ER 801 says, “Hearsay” is an out-of-court statement made to prove the truth of the matter asserted. Statements made by another are hearsay. Also, Hearsay is generally inadmissible. But now, under these circumstances, hearsay is admissible; and made worse by the fact that the defendant cannot confront the child witness at trial. This violates the essence of the 6th Amendment’s Confrontation clause. Period. 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.