Tag Archives: Skagit County Criminal Defense

Tackle or Terry Stop?

Bellingham Defense Attorney, felony, Firearm, Mount Vernon Criminal Defense Attorney, Search and Seizure, Skagit County Criminal Defense, Terry Stop, Whatcom County Criminal Defense, , , , ,

Man escapes NYPD car before being tackled Video - ABC News

In State v. Pines, the WA Court of Appeals held that police officers exceeded the scope of a Terry Stop when, with no observations or information from which to believe the suspect was carrying a weapon, they followed the suspect into a restaurant, tackled him to the ground, held him down by the neck and head, and handcuffed him.

BACKGROUND FACTS

On March 23, 2018, Officer Sausman was in his vehicle when he identified the defendant Mr. Pines driving a black BMW. Sausman recognized Pines and was aware that Pines had a warrant for Residential Burglary and Domestic Violence charges. Sausman also knew that Pines was previously convicted of a felony.

Sausman followed Pines to Columbia City, where Pines parked his vehicle and entered a Pagliacci Pizza restaurant. Sausman advised the uniformed arrest team that Pines was in the restaurant.

Detective Miller was one of three uniformed officers that entered the restaurant to contact Pines. As the officers entered, Pines began moving toward the other door. The officers tackled Pines to the ground, holding him down by the neck and head, and handcuffed him. The officers then frisked Pines and found a handgun in his jacket pocket. The State charged Pines with Unlawful Possession of a Firearm in the First Degree.

Pines moved to suppress the handgun during a pretrial CrR 3.6 hearing. The trial court denied Pines’s motion to suppress. Later, during a bench trial, the trial court found Pines guilty and imposed a sentence of 24 months in prison.

Pines appealed on arguments that that the trial court erred in finding that the search and discovery of his firearm was a lawful Terry Stop, and thus denying his motion to suppress. Pines contends that his seizure amounted to a custodial arrest and that the police lacked probable cause at the time of his arrest.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals said that under the Washington Constitution, warrantless searches are per se unreasonable unless one of the narrowly drawn exceptions to the warrant required applies. Furthermore, said the court, if the evidence was seized without authority of law, it is not admissible in court. Finally, it reasoned that a person is seized when an officer, by physical force or show of authority, restrains the person’s freedom of movement. The restraint must be such that a reasonable person would not believe they were free to leave.

“The State argues, and the trial court agreed, that Pines’s seizure and subsequent search was the result of a valid Terry Stop,” said the Court of Appeals. “We disagree.”

The Court of Appeals elaborated that under Terry v. Ohio, a police officer may temporarily detain a person based on a reasonable suspicion that the person is or has been involved in a crime.

“In evaluating the reasonableness of an officer’s suspicion, we look to the totality of the circumstances known to the officer,” said the Court of Appeals. “We determine the reasonableness based on an objective view of the known facts, not the officer’s subjective belief or ability to correctly articulate his suspicion in reference to a particular crime. The detention must not exceed the duration and intensity necessary to dispel the officer’s suspicions.”

The Court relied on State v. Mitchell  – an important Washington case on Terry Stops – to determine whether the officer’s interactions with Mr. Pines was lawful:

“Here, in stark contrast with Mitchell, the arresting officers did not observe Pines carrying a weapon. Indeed, as Detective Miller testified, they had no reason to contact Pines except for their belief that he might have a warrant.

Further, unlike Mitchell, where the officer was alone at night, there were three uniformed police officers along with Detective Sausman at the scene. No officer testified that they feared for their safety prior to Pines’s seizure or that they had seen a weapon prior to their search. And finally, unlike Mitchell where the defendant was told to lie down without contact from the officer, the three uniformed officers forcefully took Pines to the ground and handcuffed him, while Detective Sausman yelled that Pines was under arrest on a felony warrant.” ~WA Court of Appeals

With that, the WA Court of Appeals held that a reasonable person in Pines’s situation would consider themselves under custodial arrest. “Pines’s seizure exceeded the scope of a valid Terry Stop. The trial court erred in concluding the search was valid under Terry.”

The Court of Appeals also reasoned that although the officer’s knowledge of a month-old arrest warrant would support a properly limited Terry detention, it was insufficient to provide probable cause for arrest.  “The month gap between the officer learning of the arrest warrant and the arrest was too long – the suspect could have been arrested and posted bail during the 30-day interval,” said the Court.

The Court dismissed Pines’s conviction with prejudice.

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

New Whatcom County District Court Judge To Be Appointed

Bellingham Defense Attorney, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Federal Judge Denies Trump Lawsuit In Wisconsin | Wisconsin Public Radio

News reporter Robert Mittendorf of the Bellingham Herald reports that Whatcom County Council members will soon appoint a new District Court judge. Applications are being accepted for a vacancy on the Whatcom County District Court that opened this month when Judge David Grant recently retired before his term ended.

Whatcom County District Court consists of two judges, an appointed commissioner and their staff. The court hears cases that include criminal misdemeanors, general civil actions and small claims, infractions including traffic and code violations, and miscellaneous other cases, according to the Whatcom County website.

Grant was a deputy prosecuting attorney in Whatcom County for 18 years before his appointment to the District Court bench in 2004, according to elections records. He ran unopposed in 2006, 2010, 2014 and 2018.

“With the aid of jail staff and administration, the (District) Court has been able to implement an array of alternatives to traditional incarceration,” Grant wrote in the 2018 voter pamphlet.

“Sentenced offenders typically serve sentences on electronic home detention or on community service or work programs. For those requiring some form of pretrial supervision, many are released pending trial with minimally invasive forms of electronic or personal reporting alternatives delivered through jail or probation staff. I am proud to be a part of this effort.” ~Judge David Grant

Judge Grant was an excellent judge. I’ve had numerous trials before him, the most memorable ones involving  allegations of Assault and Domestic Violence. Judge Grant ruled with empathy, discipline, humor and evenhandedness. I truly enjoyed conducting trials in his courtroom. Judge Grant, you’ll be missed!

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.

As Lumber Prices Increase, Theft May Follow

Bellingham Defense Attorney, felony, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Theft, Whatcom County Criminal Defense, , , , ,

Deputies arrested a man on June 1 who they say tried to steal 32 pieces of lumber, worth more than $2,300, from a Shoreline lumber yard. (Courtesy of the King County Sheriff’s Office)

Interesting article by reporter of the Seattle Times reports that the increase in lumber prices have more than tripled over the past year. Therefore, it was only a matter of time before thieves took note, said the King County Sheriff’s Office.

Earlier this month, deputies arrested a man trying to get away with more than $2,300 worth of wood from a locked lumber yard, the sheriff’s office said Thursday in a Facebook post.

“We’ve seen this with copper prices a number of years ago,” King County sheriff Sgt. Tim Meyers told KING 5. “We saw this with catalytic converter thefts as those minerals spiked, and our concern is that lumber thefts are going to be the new catalytic converter thefts as thieves try to profit in this spike in cost.”

Catalytic converters, however, don’t usually require a truck to cart away.

According to the article, on June 1, an employee of Dunn Lumber on North 185th Street in Shoreline called dispatchers around 3:30 a.m. The employee was watching a live camera feed of the lumber yard, where a suspect could be seen taking 32 pieces of lumber from the locked space and stacking them up near an entry point where a Dodge Durango sat waiting, police said. The man was arrested and booked into the King County Jail for investigation of commercial burglary.

As lumber prices hit all-time highs, theft seems to be on the rise – and not just in Washington. In early May, a Texas man was arrested for stealing an amount of lumber greater than $500 but less than $20,000. In April, Tennessee’s Department of Agriculture warned landowners to secure their properties as lumber thefts are rising in the state. On May 21, 144 sheets of plywood – valued at over $10,000 – were stolen from a job site in Florida. 

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

Discarded DNA Admissible

Bellingham Defense Attorney, DNA, Evidence, felony, Homicide & Manslaughter, Kidnapping, law enforcement, Mount Vernon Criminal Defense Attorney, Rape, Search and Seizure, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

I 100% volunteered to do it': How bakery worker got DNA to crack 30-year-old murder case - ABC News

In State v. Bass, the WA Court of Appeals held the admission of DNA profiles developed from a plastic cup and a soda can that the defendant discarded in a garbage can at his place of employment was proper.

BACKGROUND FACTS

In November 1989, 18-year-old Amanda Stavik, a freshman at Central Washington University, returned home to rural Whatcom County to celebrate Thanksgiving with her family. On Friday, November 24, 1989, Stavik decided to go for a run with the family dog, Kyra. Her route took her down the defendant Timothy Bass’s residence. She never returned home.

On Monday, November 27, 1989, law enforcement found Stavik’s naked body in shallow, slow-moving water of the Nooksack River. During the autopsy, Whatcom County medical examiner Dr. Gary Goldfogel found semen in Stavik’s vagina and, based on the sperm count, concluded sexual intercourse had occurred no more than 12 hours before her death. This evidence led the State to conclude that someone had kidnapped and raped Stavik while she was out on her Friday afternoon run and that she had died while fleeing her captor.

Dr. Goldfogel preserved the samples he collected and sent them to the FBI and the Washington State Patrol Crime Lab for analysis. The Crime Lab developed a male deoxyribonucleic acid (DNA) profile from the sperm. The police investigation led to several suspects whom they later excluded when their DNA did not match the DNA in the sperm sample. Eventually, the case went cold.

In 2009, Detective Kevin Bowhay reopened the investigation and began asking for DNA samples from anyone who lived in the area or who may have had contact with Stavik near the time of her death. Over the course of the investigation, Det. Bowhay and his team collected more than 80 DNA samples for testing.

In 2013, Det. Bowhay asked Bass for a DNA sample. When Det. Bowhay indicated he was investigating Stavik’s death, Bass acted as if he did not know who she was, “looked up kind of, um, kind of like he was searching his memory” and said “oh, that was the girl that was found in the river.” Bass told Det. Bowhay that he did not really know Stavik and initially said he did not know where she lived. Bass refused to provide a DNA sample.

Bass’s refusal of a DNA sample raised suspicions. At this time, Bass was working as a delivery truck driver for Franz Bakery. Detective Bowhay reached out to Kim Wagner, the manager of the Franz Bakery outlet store. The detective informed Wagner he was looking for items that Bass might cast off that may contain his DNA.

In August 2017, Ms. Wagner saw Bass drink water from a plastic cup and throw the cup away in a wastebasket in the bakery’s employee break room. She collected that cup and stored it in a plastic bag in her desk. Two days later, she saw Bass drink from a soda can and, again, after he discarded it in the same trash can, she retrieved it and stored it with the cup. Det. Bowhay did not direct Wager to take any items and did not tell her how to handle or package these items.

Wagner contacted Det. Bowhay via text to let him know she had two items Bass had discarded in the garbage. Det. Bowhay met Wagner in the Franz Bakery parking lot, picked up the items, and sent them to the Washington State Crime Lab for analysis. The Crime Lab confirmed that the DNA collected from Bass’s soda can and cup matched the male DNA collected from the semen in Stavik’s body.

The State arrested Bass and charged him with first degree felony murder, rape and kidnapping. In pretrial motions, the trial court denied Bass’s motion to suppress the DNA evidence obtained from items Wagner collected at the Franz Bakery. In 2019, a jury convicted Timothy Bass of all charges.

On appeal, Bass challenged, among other things, the admissibility of DNA evidence linking him to the crime. His argument on appeal was that Wagner acted as a state agent when she collected his discarded items without a warrant.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals began by saying the Exclusionary Rule – a law that prohibits the use of illegally obtained evidence in a criminal trial – does not apply to the acts of private individuals. However, evidence discovered by a private citizen while acting as a government agent is subject to the rule.

“To prove a private citizen was acting as a government agent, the defendant must show that the State in some way ‘instigated, encouraged, counseled, directed, or controlled’ the conduct of the private person.” ~WA Court of Appeals.

The Court further reasoned that the mere knowledge by the government that a private citizen might conduct an illegal private search without the government taking any deterrent action [is] insufficient to turn the private search into a governmental one. For an agency relationship to exist, there must be a manifestation of consent by the principal [the police] that the agent [the informant] acts for the police and under their control and consent by the informant that he or she will conduct themselves subject to police control.

Consequently, the Court of Appeals rejected Bass’s argument and upheld the trial court’s findings that Ms. Wagner was not an agent at the time she pulled Bass’s cup and soda can from the trash and gave it to police:

“Det. Bowhay and Wagner both testified that Det. Bowhay did not ask or encourage Wagner to look for items to seize and did not tell her what type of items to take. Wagner testified Det. Bowhay did not instruct her to find an item containing Bass’s saliva; she made that assumption based on her husband’s experience in doing an ancestry DNA test and on watching television crime shows. Wagner confirmed that Det. Bowhay did not encourage her to find Bass’s DNA and gave her no guidance in how to do so.” ~WA Court of Appeals.

The co-worker who pulled the cup and soda can from the trash, was not acting as a government agent when she retrieved the items. The co-worker, not the detective, conceived of the idea of watching the defendant to see whether he discarded any items at work and the detective did not tell her how to handle any items collected.

With that, the Court concluded that Detective Bowhay did not direct, entice, or control Wagner and Wagner was not acting as a state agent when she retrieved Bass’s cup and soda can from the workplace trash can. “These findings in turn support the legal conclusion that Wagner’s seizure of Bass’s discarded items and the DNA evidence was not the fruit of an unlawful search.” The Court upheld Bass’s convictions.

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

Supreme Court Sides with Police Officer who Improperly Searched License Plate Database

Bellingham Defense Attorney, Computer Fraud, Federal Crimes & Prosecutions, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Technology, United States Supreme Court, Whatcom County Criminal Defense, , , ,

CA police officers keep jobs despite criminal convictions | The Sacramento Bee

In Van Buren v. United States, the U.S. Supreme Court held that defendant Nathan Van Buren, a Georgia police officer Buren, did not violate the nation’s top computer crime law when he searched a license plate database for non-official purposes.

BACKGROUND FACTS

Former Georgia police sergeant Nathan Van Buren used his patrol-car computer to access a law enforcement database to retrieve information about a particular license plate number in exchange for money. Van Buren agreed. The requestor – a third party who offered to pay him to search the database – was an undercover FBI informant. Van Buren used his own valid credentials to perform the search. However, his conduct clearly violated a department policy against obtaining database information for non-law-enforcement purposes.

Again, unbeknownst to Van Buren, his actions were part of a FBI sting operation. Van Buren was charged with a felony violation of the Computer Fraud and Abuse Act of 1986 (CFAA), which subjects to criminal liability anyone who “intentionally accesses a computer without authorization or exceeds authorized access.” 18 U. S. C. §1030(a)(2). A jury convicted Van Buren, and the lower federal District Court sentenced him to 18 months in prison.

Van Buren appealed his conviction to the Eleventh Circuit Court of Appeals, arguing that the “exceeds authorized access” clause applies only to those who obtain information to which their computer access does not extend, not to those who misuse access that they otherwise have. Consistent with Eleventh Circuit precedent, the panel held that Van Buren had violated the CFAA.

Van Buren appealed again, this time to the U.S. Supreme Court.

COURT’S RATIONALE & CONCLUSIONS

In a 6-3 majority opinion penned by Justice Amy Coney Barrett, the Court held that Van Buren’s conduct did not violate the CFAA when he searched a license plate database for non-official purposes.

Justice Barrett wrote that Van Buren’s conduct “plainly flouted” his department’s policy, which authorized him to obtain database information only for law enforcement purposes.
“The parties agree that Van Buren accessed a computer with authorization and obtained information in the computer,” wrote Justice Barrett.  “They dispute whether Van Buren was entitled so to obtain that information.”
Regarding that specific issue, Justice Barrett reasoned the provision of the law at issue does not cover those who have improper motives for obtaining information that is otherwise available to them.  And regarding the issue of whether Van Buren violated the CFAA  – the truly important legal issue of the case –  Justice Barrett wrote “he did not.”
“The relevant question, however, is not whether Van Buren exceeded his authorized access but whether he exceeded his authorized access as the CFAA defines that phrase. For reasons given elsewhere, he did not.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

“To top it all off,” she wrote, the government’s expansive interpretation of the law “would attach criminal penalties to a breathtaking amount of commonplace computer activity.” Simply checking personal email or reading the news on a work computer would be considered a crime, Barrett added.

“The Government’s interpretation of the “exceeds authorized access” clause would attach criminal penalties to a breathtaking amount of commonplace computer activity. For instance, employers commonly state that computers and electronic devices can be used only for business purposes. On the Government’s reading, an employee who sends a personal e-mail or reads the news using a work computer has violated the CFAA.” ~U.S. Supreme Court Justice Barrett, Majority Opinion

Finally, Justice Barrett reasoned that the Government’s prosecution would also inject arbitrariness into the assessment of criminal liability, because whether conduct like Van Buren’s violated the CFAA would depend on how an employer phrased the policy violated.

With that, the U.S. Supreme Court reversed Van Buren’s criminal conviction.

THE DISSENT

In his dissent, Justice Thomas compared Van Buren’s actions to a valet charged with parking a car, writing that the law should have covered the police officers’ actions. The valet, Thomas wrote, may “take possession of a person’s car to park it, but he cannot take it for a joyride,” Thomas wrote. He noted that Van Buren had permission to retrieve license plate information, but only for “law enforcement purposes.”
“When the police officer accessed the database in exchange for a bribe from an acquaintance, he exceeded authorized access under the law . . . Without valid law enforcement purposes, he was forbidden to use the computer to obtain that information.” ~ U.S. Supreme Court Justice Thomas, Dissenting Opinion.
In another example, Thomas said that an employee may be entitled to pull the alarm in the event of a fire, “but he is not entitled to pull it for some other purpose, such as to delay a meeting for which he is unprepared.”
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.

 

Emergency Exception to the Warrant Requirement

9th Circuit Court of Appeals, Bellingham Defense Attorney, Exigent Circumstances, Federal Crimes & Prosecutions, Fourth Amendment, Mount Vernon Criminal Defense Attorney, Robbery, Search and Seizure, Search Warrant, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Most humiliating experience of my life:' Black North Carolina man after false burglar alarm - ABC News

In United States v. Holiday, the 9th Circuit Court of Appeals held that the police officer’s opening of the defendant’s unlocked front door constituted a search that was not justified by Exigent Circumstances exception to the warrant requirement because officers had no reason to believe that an emergency existed.

BACKGROUND FACTS

Mr. Holiday was tried and convicted for seven counts of armed robbery and three instances of attempted armed robbery under 18 U.S.C. 1951. The federal district court sentenced him to a mandatory minimum term of eighty-five years’ imprisonment.

At his trial, the Government sought to admit police body camera footage taken during an unrelated police encounter at the defendant’s home in connection with the report of child abuse in a vehicle registered to the defendant’s home. In the footage, the defendant was wearing shoes that matched the description of the shoes the suspect was wearing at an ARCO gas station in one of the robberies.

The body camera footage was taken on February 7, 2017. It was taken after police received a report that a man was hitting a child in the backseat of a blue Jaguar. In a “contemporaneous line” of actions from the report of the incident, police ran the license plate and found it was registered to a person with the initials M.B.

The bodycam video shows that when the officers arrived at the defendant’s  address, one of them knocked on the front door, tried the handle, and found it was unlocked. The officer pushed the door open but remained standing on the threshold. Holiday and his wife were on their way to the door when the officer opened it. They told the officers that their children were at school and that they did not own a blue Jaguar. There is no indication that the officers saw a blue Jaguar at or near Holiday’s residence. The officers took Holiday’s name and left.

Mr. Holiday moved to suppress the bodycam footage of this exchange on the ground that it was collected in violation of the Fourth Amendment. However, the federal district trial court denied Mr. Holiday’s motion to suppress the aforementioned bodycam evidence.  Later, Holiday was found guilty. The court sentenced him to a mandatory minimum term of eighty-five years’ imprisonment.

Holiday appealed on grounds that the trial court errored by denying his motion to suppress the body camera footage of him.

COURT’S ANALYSIS & CONCLUSIONS

First, the 9th Circuit reasoned that The San Diego Police Department did not obtain a
warrant to search Holiday’s home in connection with the report of child abuse in a blue Jaguar registered to Holiday’s address.

“Searches and seizures inside a home without a warrant are presumptively unreasonable and therefore violate the Fourth Amendment, unless subject to an established exception,” said the 9th Circuit, quoting  Kentucky v. King, 563 U.S. 452, 459 (2011).

Next, the 9th Circuit addressed the Government’s argument that the search was legal because it was pursuant to the Emergency Exception to the Warrant Requirement (Exigent Circumstances).

Ultimately, the 9th Circuit Court of Appeals disagreed with the Government. The court reasoned that the officers’ opening of the unlocked front door constituted a search that was not justified by the emergency exception as the officers had no reason to believe that the child victim was is the home at the address where the Jaguar was registered. There was no indication that the incident in the Jaguar had ended, and no blue Jaguar was at the address when the officers arrived.

“The officers’ conduct does not fall within the scope of the emergency exception to the warrant requirement.” ~ 9th Circuit Court of Appeals.

The 9th Circuit concluded, however, that the error in admitting the body camera evidence was harmless because of the strength of the other evidence that the defendant committed the ARCO robbery.

Please review my Search and Seizure Legal Guide and contact my office if you, a friend or family member are charged with a crime and the police search/seizure might be unlawful. Hiring an effective and competent defense attorney is the first and best step toward justice.

New Law Offers Prison Alternatives for Mentally Ill

Bellingham Defense Attorney, Diminished Capacity, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Mentally Ill Inundate State Prisons | Connecticut Public Radio

Reporter Austin Jenkins of the Northwest News Network wrote an article reporting that Washington Gov. Jay Inslee has signed a measure that will soon offer an alternative to prison for people with a serious mental illness who commit a crime.

Under the new law signed Monday by Inslee, judges will have the option to sentence a person to community supervision and treatment in lieu of prison. Washington already offers sentencing alternatives for certain drug offenders and certain sex offenders.

The program — which takes effect July 25 —will be open to individuals who are convicted of a felony crime that is not a serious violent offense or a sex offense. The person would have to be willing to participate in the sentencing alternative, the court would have to determine the individual would benefit from community-based supervision and treatment, and the opinion of the person’s victim would also be considered.

If the person were to violate the conditions of the sentencing alternative, they could be sent to prison to serve their sentence.

My opinion? Excellent idea. Data suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population. Our sentencing should be sensitive to these problems.

Please contact my office if you, a friend or family member are charged with a crime and mental health is an issue. Substantive defenses such as Diminished Capacity are helpful. Hiring an effective and competent defense attorney is the first and best step toward justice.

Right to Present A Defense

Bellingham Defense Attorney, DNA, ER 401, ER 402, felony, Mount Vernon Criminal Defense Attorney, Rape, Sex Crimes, Skagit County Criminal Defense, Uncategorized, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Criminal Defendant Constitutional Rights- New Mexico Criminal Law

In State v. Cox, the WA Court of Appeals held that the trial court mistakenly excluded evidence pursuant to the Rape Shield Statute  that the victim flirted with the defendant and sat on his lap at the party where the unlawful sexual contact occurred.

BACKGROUND FACTS

The incident occurred in the early morning hours at the complaining witness’s house after her birthday party. The complaining witness testified that after she fell asleep in her bed, she was awakened by the defendant digitally raping her. The State presented evidence that Mr. Cox’s DNA was found on the complaining witness’s undergarments.

Mr. Cox denied the accusation entirely and testified that the complaining witness was intoxicated and that he had rejected her advances. Nevertheless, he was charged and convicted of Rape in the Second Degree.

COURT’S ANALYSIS AND CONCLUSIONS

The Court of Appeals reasoned that the Rape Shield Statute does not apply to behavior that is contemporaneous with the alleged rape. Here, the victim flirted with the defendant and sat on his lap at the party. That evidence should not have been suppressed. In addition, the statute does not apply to evidence, which was offered to explain how the victim’s intoxication affected her behavior and memory of that night and that there may have been an innocent explanation for the DNA transfer.

“The excluded evidence in this case was not past behavior; it was contemporaneous with the alleged rape. Nor was it being introduced to show consent. And while it was being introduced to discredit the victim’s credibility, the focus was on her level of intoxication, not on allegations of promiscuity. Thus, application of the Rape Shield Statute in these circumstances was untenable and an abuse of discretion.” ~ WA Court of Appeals.

The Court also decided the trial court wrongfully suppressed evidence of the alleged victim’s behavior with the Defendant at the party:

“Evidence that the victim was highly intoxicated, acting in a manner that was uncharacteristically flirtatious, and sitting on Mr. Cox’s lap in a dress, was ‘highly relevant’ to his theory of the defense. The prejudicial value of this evidence, if any, was low.” ~ WA Court of Appeals.

Also, the Court of Appeals reasoned that the trial court erred by sustaining an objection to a hypothetical question that defense posed to the State’s DNA expert during cross-examination. Here, Mr. Cox tried to present expert testimony evidence that it was possible for his DNA to be transferred to the complaining witness’s underwear through innocent, non-sexual contact such as sitting on his lap. The Court of Appeals disagreed, and held that an expert witness may be cross-examined with hypotheticals yet unsupported by the evidence that go to the opponent’s theory of the case.

“The lap-sitting incident provides an explanation as to how Mr. Cox’s DNA might have been transferred to the complaining witness. The witness’s inability to recall this incident calls into question her ability to remember other events from that night. And her flirtatious behavior with Mr. Cox supports his version of events.” ~ WA Court of Appeals.

Next, the Court of Appeals reasoned the trial court’s exclusion of the Defendant’s reputation evidence on the particular character trait of sexual morality was wrong. “Contrary to the trial court’s position, “this type” of evidence is explicitly
admissible under ER 404(a)(1),” said the Court.

With that, the Court of Appeals concluded that the trial court’s errors mentioned above were not harmless. It reversed Mr. Cox’s conviction and remanded for a new trial.

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

Deliberate Cruelty

Bellingham Defense Attorney, Deliberate Cruelty, Exceptional Sentencing, felony, Homicide & Manslaughter, Mount Vernon Criminal Defense Attorney, Sentencing, Skagit County Criminal Defense, Violent Crime, Washington Court of Appeals, Whatcom County Criminal Defense, , , ,

Burning Red Flare Held Up At Night by RockfordMedia | VideoHive

In State v. Burrus, the WA Court of Appeals held there was sufficient evidence the defendant demonstrated deliberate cruelty to the victim when he poured gasoline on the victim, lit a flare and set the victim on fire.

BACKGROUND FACTS

Mr. Burrus poured gasoline on victim Mr. Busch and threw a lit flare at him, causing him to catch fire. Busch suffered second and third degree burns on 30 percent of his body. The State charged Burrus with attempted first degree murder with the aggravating factor that his conduct manifested deliberate cruelty. The jury found Burrus guilty as charged.

Based on the jury’s finding of deliberate cruelty, the trial court imposed an exceptional  upward sentence. The trial court found that the aggravating factor of deliberate cruelty was a compelling reason to justify an exceptional sentence and imposed a sentence of 300 months.

On appeal, Mr. Burrus argued the the trial court erred in imposing an exceptional sentence based on the jury’s finding of deliberate cruelty.

COURT’S RATIONALE & CONCLUSIONS

The Court of Appeals stated that under the Sentencing Reform Act, generally, a court must impose a sentence within the standard range. A court may depart from the guidelines and impose a higher sentence if it finds substantial and compelling reasons. The existence of an aggravating factor may support an exceptional sentence.

Next, the court addressed the issue of whether the lack of comparative evidence meant there was insufficient evidence to supported the jury’s finding of deliberate cruelty.

“Burrus says insufficient evidence supports the jury’s finding of deliberate cruelty,” said the Court of Appeals. “He contends that because the State failed to provide comparative evidence of typical attempted first degree murders, the jury had insufficient evidence to determine whether the facts here were atypical.”

However, the Court of Appeals disagreed with Burrus and held that the State is not required to provide the jury with examples of typical attempted first degree murders:

“It is within a jury’s capability, based on their common sense and common experience, to determine that dousing a person in gasoline, lighting them on fire, and then leaving them to burn is deliberately cruel.” ~WA Court of Appeals

Consequently, the Court also reasoned that Mr. Burrus cannot assert a vagueness challenge to the deliberate cruelty aggravator, either.

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.

 

COVID Increases Overdoses

Bellingham Defense Attorney, Coronavirus, Drug Offenses, Fentanyl, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Whatcom County Criminal Defense, , , , ,

Coronavirus US: DEA seizes $1M worth of heroin, Fentanyl labeled ' coronavirus' bio-hazard, 'Black Mamba' in Bronx drug bust - ABC11 Raleigh-Durham

Great article by Brian Mann from NPR says that researchers have seen a significant rise in overdose deaths from street drugs laced with deadly synthetic opioids including Fentanyl.

“We’ve seen a very significant rise in mortality,” said Dr. Nora Volkow, head of the National Institute of Drug Abuse, who spoke Thursday as part of an on-line gathering of the American Society of Addiction Medicine. The trend contributed to a stark rise in overdoses that left more than 90,000 Americans dead during the 12-month period ending in September 2020, according to the latest data.

According to preliminary figures released earlier this month by the Centers for Disease Control and Prevention, synthetic opioid fatalities rose by an unprecedented 55% during the twelve months ending in September 2020. Deaths from methamphetamines and other stimulants also surged by roughly 46%, an increase Volkow said is linked to fentanyl contamination. In all more than 90,000 Americans died from overdoses in the latest 12-month period for which preliminary data is available. That compares to roughly 70,000 drug deaths during the same period a year earlier.

As the CDC has updated its fatal overdose estimates during the pandemic, the upward trend has shown no sign of slowing. As recently as October, data suggested the country was on track for at least 75,000 overdose deaths in 2o2o. That would have been a grim new record, but the latest figures make it clear the toll will be far higher. Preliminary data for the full year won’t be available until mid-summer.

Studies have also shown a significant increase in the number of Americans using alcohol or drugs to cope with the pressures of the pandemic. One team of CDC researchers found roughly 13% of people surveyed either began using drugs during the pandemic or increased their use of illicit substances.

“COVID-19 has made us aware how negative the stigmatization of substance use disorders has been over time,” Volkow said.

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