Tag Archives: Whatcom County Criminal Defense Attorney

Victim’s Motive To Testify

Assault, Bellingham Defense Attorney, Constitutional Rights, Domestic Violence, Evidence, felony, Immigration, Jury Trial, Mount Vernon Criminal Defense Attorney, Sixth Amendment, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Ulterior Motive

In State v. Bedada, the WA Court of Appeals held that in a domestic violence prosecution involving a citizen-victim and a non-citizen defendant, the trial judge mistakenly suppressed evidence of the victim’s motive to testify.

BACKGROUND FACTS

After a series of alleged incidents of domestic violence, Mr. Bedada was charged with three counts of assault in the first degree and one count each of felony harassment, witness intimidation, and witness tampering.

All of these charges were primarily supported by the testimony of Mrs. Haile, who was the defendant’s wife.

At trial, the judge excluded evidence of Mr. Bedada’s non-citizen immigration status; and more specifically, that he would be deported if convicted of the crimes. As a result, Mr. Bedada was prevented from cross-examining Haile and revealing a motive for her to fabricate her testimony.

Bedada was convicted on all charges except two counts of assault in the first degree. He appeals on the argument that the judge’s decision to suppress his citizenship status was erroneous and without merit.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals explained that the Sixth Amendment to the United States Constitution and article I, section 22 of Washington’s constitution guarantee a defendant’s rights to confront the witnesses testifying against him.

Furthermore, the Court of Appeals said that under Evidence Rule (ER) 401, evidence is relevant if it tends to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Also, under ER 403,  relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.”

Finally, the court explained that under ER 413(a), evidence of immigration status may only be admitted when the party seeking to admit the evidence follows the procedure set forth under the rule. ER 413(a) states,

“In any criminal matter, evidence of a party’s or a witness’s immigration status shall not be admissible unless immigration status is an essential fact to prove an element of, or a defense to, the criminal offense with which the defendant is charged, or to show bias or prejudice of a witness pursuant to ER 607.” (emphasis supplied).

The court analyzed the aforementioned rules and ultimately found that plainly, evidence of a motive to fabricate on the part of Mrs. Haile— whose testimony was the principal evidence supporting every charge against Bedada — could affect a fact finder’s analysis as to whether the facts alleged by Haile were true.

“No party disputed the reliability of evidence of Bedada’s noncitizenship,” said the court. “To the extent that the trial court engaged in a balancing of the probative value and prejudicial effect of the proffered evidence, it unfortunately omitted or misapplied several critical factors necessary to a proper analysis.”

Notably, the Court of Appeals also took issue that neither the Prosecutor nor the trial judge identified any prejudicial effect — specific to this case — that might result from the introduction of evidence of Bedada’s immigration status:

“The State’s assertion did not identify, with any particularity, the prejudice that the State would encounter beyond a generalized concern of immigration as a sensitive political issue. The lack of a specific, as opposed to merely a general, prejudicial effect is significant.”

Finally, the Court found it important that Mrs. Haile was the primary witness against Bedada in every charge against him.

“She was the State’s most important witness,” said the Court. “Demonstrating bias on the part of the key witness has long been deemed an important element of a defendant’s right to present a defense.

For all of these reasons, the Court of Appeals ruled that the trial court’s decision to exclude evidence of Mr. Bedada’s immigration status constituted an abuse of discretion. Consequently, the Court reversed Mr. Bedada’s convictions.

My opinion? Good decision. Although I sympathize with the victim’s plight, it is wrong for trial courts to suppress evidence of a victim’s ulterior motives for testifying. it is powerful, relevant and probative evidence establishing motive that the victim knew that the defendant would be deported if she testified against him. Defense counsel did a great job establishing a record for appeal.

Please contact my office if you, a friend or family member are non-citizens charged with crimes, especially deportable offenses like Domestic Violence. Hiring an effective and experienced criminal defense attorney is the best step toward justice.

Inmates Sew Gowns & Masks In Fight Against Coronavirus

Bellingham Defense Attorney, Coronavirus, Mount Vernon Criminal Defense Attorney, Prison, Skagit County Criminal Defense, Whatcom County Criminal Defense, , , , ,

Members of the Washington Correction Center for Women’s Sisters of Charity stitch gowns to be donated to area fire and rescue, as well as masks for inmates. (Courtesy of Washington Corrections Center for Women)

Great article by Seattle Times staff reporter describes how inmates sew masks and gowns in the fight against Coronavirus.

The group, called the Sisters of Charity, formed about 20 years ago at the Washington Corrections Center for Women (WCCW) in Gig Harbor – many of whom are serving life sentences – make items from donated materials for about 30 different charities.

Reporter Scott Hanson reports that South King Fire & Rescue needed protective gowns for an anticipated surge in coronavirus cases this fall and winter, and the group was happy to help. Not only have they made 700 gowns for South King Fire & Rescue, they also made 300 for the Gig Harbor Fire Department, with 600 more on order.

“I think this project meant so much because it was a call to action and an opportunity for them to be part of their community despite the walls,” said Carrie Hesch, WCCW’s recreation and athletic director. “They are absolutely thrilled to be able to do something for the community and stay busy.”

In one project home improvement giant Lowe’s donated Tyvek, a fabric used in protective gear, and the group used an assembly-line process that allowed workers to keep socially distant; two groups of 15 worked in rotating shifts.

One gown can be made every 13 minutes, depending on the skill level of the seamstress. In two weeks, the first 700 were made. Then came the 300 for Gig Harbor. The group is also making masks for the incarcerated and has produced more than 4,000.

Great job, ladies!

Also, excellent reporting from Scott Hanson. His article is one in a periodic Seattle Times series called Stepping Up, highlighting moments of compassion, duty and community in uncertain times.

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

Disruptive Defendants

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

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

Decrease in DV Reporting

Bellingham Defense Attorney, Coronavirus, Domestic Violence, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Violent Crime, Whatcom County Criminal Defense, , , , ,

Audrey McIntosh | Commonwealth Fund

Great article by Denver Pratt of the Bellingham Herald reports that Whatcom County agencies helping domestic violence and child abuse victims say they’ve seen a decrease in DV reporting since the start of the COVID-19 pandemic.

According to Pratt, the agencies say this is a worrying sign, as it likely means victims are isolated with their abusers and are less likely to be able to access help.

Elizabeth Hart, a program manager with Domestic Violence and Sexual Assault Services, said the nonprofit has seen a decrease in the number of calls reported to its 24-hour helpline. Hart said in March they helped 236 clients, as compared to 360 in March of last year.

Hart said the decrease suggests to her that people in abusive situations have a limited ability to reach out for help as Washington is under a “Stay Home, Stay Healthy” order in an attempt to stop the spread of the new coronavirus. Gov. Jay Inslee has extended the order through May 31.

Hart said during a stay-home order, abusive partners have more opportunity to watch and control who their victims talk to and what they do. And as stresses mount in the home, like job loss or having to educate children while schools are closed, the number of abusive incidents could rise or become more dangerous, Hart said.

Ms. Hart also said if a victim loses a job, they can become more financially dependent on their abusive partner, making it harder to leave the abusive relationship. Hart said prior to the global pandemic, financial impacts were one of the main reasons a victim would stay with an abusive partner.

However, false reporting and victim recantations also commonly happen in DV crimes; and are just as likely to exacerbate during these strange and uncertain times.

Please contact my office if you, a friend or family member are charged with Domestic Violence during this “Stay Home, Stay Healthy” period. Hiring an experienced criminal defense attorney is the first and best step towards justice.

Miranda & Border Detention

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

Interrogation Room - SoFlo Studio

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

BACKGROUND FACTS

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

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

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

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

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

COURT’S ANALYSIS & CONCLUSIONS

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

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

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

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

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

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

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

Guilty Verdicts Must Be Unanimous

Bellingham Defense Attorney, Homicide & Manslaughter, Jury Trial, Mount Vernon Criminal Defense Attorney, Race & Law, Sixth Amendment, Skagit County Criminal Defense, United States Supreme Court, Whatcom County Criminal Defense, , , , ,

In Louisiana, you can be convicted of a serious crime by a 10-2 ...

In Ramos v. Louisiana, the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires that guilty verdicts must be unanimous.

BACKGROUND FACTS

In 48 States and federal court, a single juror’s vote to acquit is enough to prevent a conviction. But two States, Louisiana and Oregon, have long punished people based on 10-to-2 verdicts.

In this case, the defendant Mr. Ramos was convicted of second degree murder in a Louisiana court by a 10-to-2 jury verdict. Instead of the mistrial he would have received almost anywhere else, Ramos was sentenced to life without parole. He appealed his conviction by a nonunanimous jury as an unconstitutional denial of the Sixth Amendment right to a jury trial.

COURT’S ANALYSIS & CONCLUSIONS

Justice Gorsuch delivered the opinion of the Court, which reversed Ramos’s conviction on the basis that the Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.

First, the Court reasoned that a “trial by an impartial jury” requires that a jury must reach a unanimous verdict in order to convict.

“Juror unanimity emerged as a vital common law right in 14th-century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified . . . Thus, if the jury trial right requires a unanimous verdict in federal court, it requires no less in state court.” ~Justice Gorsuch, United States Supreme Court

Second, the Court reasoned Louisiana’s and Oregon’s unconventional jury trial schemes had a long history of being viewed as unconstitutional. It stated that jury unanimity was essential to the right to a fair trial guaranteed by the Sixth Amendment. Furthermore, research has demonstrated that a unanimous jury requirement strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.

Finally, the Supreme Court overturned its deeply divided decision in Apodaca v. Oregon, which concluded that jury unanimity was required in federal criminal trials but not in state criminal trials. In short, the Court reasoned that modern empirical evidence and subsequent case law have undermined Apodaca’s reasoning and conclusions.

My opinion? The Court’s decision was a major victory for protecting the rights of criminal defendants. The Court recognized that jury unanimity has historically been an essential element of the Sixth Amendment right to an impartial trial by jury in criminal cases. Also, the potential impact of Ramos v. Louisiana extends far beyond issues of criminal procedure, as the justices’ spirited debate over when and whether to overturn precedent took center stage and illustrated deep divisions within the Court.

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

Some Crimes Decreasing Amid COVID-19

Bellingham Defense Attorney, Coronavirus, felony, misdemeanor, Mount Vernon Criminal Defense Attorney, Skagit County Criminal Defense, Studies, Uncategorized, Whatcom County Criminal Defense, , , , ,

Coronavirus Quarantines Spark Drop in Crime – for Now | National ...

Great article in Bloomberg by Chris Dolmetsch, Edvard Pettersson and Christopher Yasiejko reports that in the largest U.S. cities, crime has dropped since the Coranavirus Pandemic.

In short, car thefts and store robberies are spiking in some municipalities even as crime overall — especially violent offenses — dropped in 10 of the 20 most populated cities, more than halving in San Francisco alone, according to data analysis from 10 major cities.

“It’s just a reflection of reduced opportunities for these kind of events,’’ said Daniel Nagin, a criminologist and professor of public policy at the H.J. Heinz School of Public Policy and Management at Carnegie Mellon University in Pittsburgh. “In the case of murders, these often occur in public places in bars and things like that. With those kinds of activities shut down there’s less social interaction.

Car theft is surging New York city, up 49% for the week ended April 12 as compared to the same period a year earlier. It’s risen 53% over the past month and more than 63% year to date. Car theft was the only major crime to show an increase in Los Angeles, rising 11.3% for the the 28 days ending April 11 from the previous period.

Burglaries are also on the rise in New York, up 26% year-to-date as compared to the same period in 2019. In the week ended April 12, they more than doubled in the southern half of Manhattan, where many stores are now unoccupied. Burglaries jumped almost 34% in Denver in March amid a growing number of break-ins at marijuana dispensaries. In Philadelphia, burglaries were down 6.7% overall, with residential break-ins falling 25% as more people stay home, but unoccupied businesses were hit hard, with commercial burglary rising 71%.

Robberies and burglaries dropped more dramatically in Los Angeles than some other major U.S. cities, perhaps because it closed non-essential businesses and told people to stay at home earlier than other cities, said Charis Kubrin, a professor of criminology at the University of California, Irvine.

“Property crimes are crimes of opportunity and with most businesses closed, there are simply fewer opportunities.” ~Charis Kubrin, Professor of Criminology

Each of the 10 major cities that provided data are showing a decline in rapes and sexual assaults, with San Francisco posting the biggest drop — more than 50% — as compared to the same period a year earlier.

For the most part, murders are on the decline, and in cities showing a rise the numbers are low to begin with. A 25% increase in Austin, for example, is the result of one additional homicide, with the number rising from four to five.

“There are fewer opportunities for young people to get together . . . So there’s less chance when there’s alcohol involved for arguments to get out of hand and to result in assaults or homicides.” ~Charis Kubrin, Professor of Criminology

According to the article, most cities are showing a decline in assaults, following the trend in other violent-crimes categories. Notably, the drop-off comes even after the release from prison of thousands of non-violent offenders. That may show that many such offenders need not have been put in jail to start with.”

Theft is also down across the board in the cities surveyed.  But Kubrin said the drop in street crime may be followed by an increase in white-collar crime, such as price gauging and online fraud. “Opportunities have shifted from the street to online,” she said.

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

DUI & Opinion Evidence

Bellingham Defense Attorney, Constitutional Rights, Drug Recognition Expert, DUI, Motions In Limine, Mount Vernon Criminal Defense Attorney, police, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Nunez trial Day 3: El Paso cops, arson investigator, medical ...

In City of Seattle v. Levesque, the WA Court of Appeals held that a police officer, who is not a Drug Recognition Expert (DRE), may not give an opinion on whether the defendant was guilty of DUI.

BACKGROUND FACTS

On April 29, 2015, the Seattle Police Department dispatched Officers Hinson and Officer Coe to the scene of an automobile accident involving two vehicles. Levesque had failed to stop his vehicle prior to hitting the vehicle in front of him. The accident caused moderate to severe damage, and Levesque’s vehicle could not be driven.

Officer Hinson placed Levesque under arrest for DUI.

Although Officer Hinson had received training in field sobriety tests (FSTS), he did not perform any FSTs at the scene because of Levesque’s symptoms, the absence of any alcohol smell, and the location of the accident and corresponding impracticability of FSTs. Officer Hinson did not perform a horizontal gaze nystagmus (HGN) test for signs of impairment. Officer Hinson, who is not DRE certified, testified that he attempted to contact a DRE by radio, but no DRE was available.

For those who don’t know, a DRE  is a police officer trained to recognize impairment in drivers under the influence of drugs other than, or in addition to, alcohol.

After arresting Levesque, Officer Hinson transported Levesque to Harborview Medical Center, where he had his blood drawn. The drug analysis results showed that Levesque’s blood contained 0.14 milligrams per liter (mg/L) of amphetamine and 0.55 mg/L of methamphetamine. The City charged Levesque with DUI.

Before trial, Levesque moved in limine to exclude any testifying officer’s opinion on ultimate issues. The trial court granted the motion but ruled that an officer could state “in his opinion, based upon the totality of the circumstances, that Levesque was impaired.” The trial court also granted Levesque’s additional motion to exclude officers as experts but declared that an officer—testifying as a lay witness—could “certainly testify to what he objectively observed during the investigation.”

Officer Hinson testified that through his training and experience Levesque showed signs as possibly being impaired by a stimulant. When asked to opine as to whether Levesque was impaired by drugs, Officer Hinson testified that his opinion was that Levesque was definitely impaired at the time of the accident.” Levesque objected to Officer Hinson’s testimony and requested a mistrial outside the presence of the jury following a lunch recess. The court overruled Levesque’s objections.

Also at trial, Levesque offered an alternative theory for his perceived impairment. Levesque’s defense theory was that he was prescribed medication for injuries which explain his behavior. In support of this defense, Levesque presented testimony from his physician about treatment and prescriptions that she gave Levesque prior to the accident, her diagnoses, and Levesque’s symptoms.

The jury convicted Levesque of driving while under the influence. Levesque appealed his conviction to the superior court, which reversed based on Officer Hinson’s opinion testimony. The city of Seattle (City) appealed.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that opinion testimony must be deemed admissible by the trial court before it is offered. Opinion testimony may be admissible under ER 701 as lay testimony or ER 702 as expert testimony. However, when opinion testimony that embraces an ultimate issue is inadmissible in a criminal trial, the testimony may constitute an impermissible opinion on guilt. Furthermore, impermissible opinion testimony regarding the defendant’s guilt may be reversible error.

Here, the opinion testimony at issue consists of Officer Hinson’s statements that Levesque showed signs and symptoms of being impaired by a specific category of drug – i.e., a CNS stimulant – and that Levesque was “definitely impaired” at the time of the accident.

“We conclude that because Officer Hinson was not a drug recognition expert (DRE) and lacked otherwise sufficient training and experience, he was not qualified to opine that Levesque showed signs and symptoms consistent with having consumed a particular category of drug.” ~WA Court of Appeals

Furthermore, the Court of Appeals reasoned that because the officer’s opinion that Levesque was “definitely impaired” constituted an impermissible opinion of Levesque’s guilt, the trial court’s admission of that testimony violated Levesque’s constitutional right to have the jury determine an ultimate issue. Finally, because Levesque presented an alternative theory for his behavior, the City did not establish beyond a reasonable doubt that any reasonable jury would have convicted Levesque. “Therefore, we affirm the superior court’s reversal of Levesque’s conviction,” said the Court of Appeals.

My opinion? Excellent decision. And excellent work on behalf of his defense attorney. They did a great job of making a record for not only trying to suppress the officer’s opinion evidence during motions in limine, but also for properly objecting at the right time and preserving the issue for appeal when the officer unlawfully offered the opinion testimony.

Under Evidence Rule 704, witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions. This is because testimony from witnesses on these issues is not probative and is, in fact, prejudicial to criminal defendants. Good opinion.

Please contact my office if you, a friend or family member are charged with DUI. Hiring a competent and experienced criminal defense attorney who is well-versed on pretrial motions and the rules of evidence is the first and best step toward justice.

Nearly 1,000 Inmates To Be Released In Washington State

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

Virginia begins releasing new data about COVID-19 in prisons

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

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

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

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

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

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

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

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

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

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

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

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

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

Entrapment & Sex Crimes

Bellingham Defense Attorney, Constitutional Rights, Entrapment, Ineffective Assistance, Jury Instructions, Juvenile, law enforcement, Mount Vernon Criminal Defense Attorney, Promoting Prostitution, Rape, Sex Crimes, Skagit County Criminal Defense, Washington Court of Appeals, Whatcom County Criminal Defense, , , , ,

Online sting was 'clear case of entrapment:' lawyer | CTV News

In State v. Johnson, the WA Court of Appeals held that a Defendant cannot claim Entrapment for numerous attempted sex offenses by responding to a fake Craigslist add in the “Casual Encounters” section created by police officers conducting an online sting operation.

BACKGROUND FACTS

Law enforcement created a posting in the Craigslist casual encounters section. Mr. Johnson responded to the ad. His communications with the (as-yet-unknown) police led Mr. Johnson to believe the add was posted by a 13-year-old female named “Brandi” who was home alone. Mr. Johnson was instructed to drive to a minimart and await further instructions via text. Johnson drove to the designated minimart. “Brandi” then gave Johnson the address of the house and he drove toward that location. Law enforcement apprehended Johnson while on his way from the minimart to the house. At the time of his arrest, Johnson was carrying forty dollars.

Johnson was charged with (1) attempted second degree rape of a child, (2) attempted commercial sexual abuse of a minor, and (3) communication with a minor for immoral purposes. During trial, he requested the Entrapment Defense via a jury instruction. However, the trial judge denied Johnson the defense and jury instruction. The jury found him guilty of all charges.

Johnson appealed, claiming ineffective assistance of counsel and that the trial judge erred by denying the Entrapment defense.

COURT’S ANALYSIS & CONCLUSIONS

The court explained that in order to prove the affirmative defense of entrapment, a defendant must show, by a preponderance of the evidence, that he committed a crime, that the State or a State actor lured or induced him to commit the crime, and that the defendant lacked the disposition to commit the crime. A defendant may not point to the State’s absence of evidence to meet his evidentiary burden for an affirmative defense. Importantly, as a matter of law, the Court also stated the following:

“Entrapment is not a defense if law enforcement merely afforded the actor an opportunity
to commit a crime.”

“Here, Johnson points to no evidence to support an entrapment instruction,” reasoned the Court. Here, law enforcement created a Craigslist posting purporting to be a woman looking for a man to teach her how to be an adult. This add, however, was not entrapment on the part of police. The add merely presented an opportunity for Mr. Johnson to incriminate himself and commit a crime:

“Johnson initiated contact by answering the posting. Johnson testified that no one forced him to answer the posting. Although Johnson stated he wanted to be cautious because ‘Brandi’ was underage, he steered the conversation into explicitly sexual territory by graphically explaining his sexual desires to the purported thirteen-year-old. When ‘Brandi’ suggested meeting at a later time, Johnson declined, stating that he was available to meet. There is no evidence that law enforcement lured or induced Johnson.”

The court also rejected Johnson’s argument that he was entitled to an entrapment instruction because the State failed to show he had a predisposition to commit the crimes against children, and there was no evidence of a history regarding perverse activity towards children.

“But pointing to the State’s absence of evidence does not meet Johnson’s evidentiary burden for his affirmative defense,” said the Court. Instead, explained he Court, the evidence shows that law enforcement merely afforded Johnson the opportunity to commit his crimes. Johnson willingly responded to the posting, steered the conversation to explicitly sexual topics, testified that he wanted to meet the person, and drove to the agreed locations.

The Court of Appeals concluded that because Johnson failed to show any evidence entitling him to a jury instruction on entrapment, the trial court did not err by refusing to instruct the jury on entrapment. The court also denied Mr. Johnson’s claims of ineffective assistance of counsel.

My opinion? Entrapment is a very difficult defense to prove under these circumstances. Law enforcement officers are allowed to engage in sting operations, whereby they create circumstances that allow individuals to take criminal actions that they can then be arrested and prosecuted for. These are considered “opportunities” for individuals believed to be involved in criminal behavior to commit crimes. An opportunity is considered very different from entrapment and involves merely the temptation to violate the law, not being forced to do so.

Please contact my office if you, a friend or family member face sex offenses and Entrapment could be a substantive defense. Hiring an experienced criminal defense attorney is the first and best step towards justice.