Archive for the ‘Criminal Law’ Category

WA Supreme Court: Still Need Probable Cause for Body Searches Under CrR 4.7

October 20, 2010

State v. Garcia-Salgado

Garcia-Salgado (GS from here on out, as that’s a lot to type) decided it was kosher to pull down an 11 year old’s pants and move up and down on her. Her parent’s disagreed on this point. A police officer sided with the parents. The court, after his arrest, ordered GS’s DNA be taken under Criminal Rule 4.7(b)(2)(vi).

Unfortunately, CrR 4.7 is subject to constitutional requirements. This means you have to have a warrant, and you have to have the additional prerequisites for an invasion to the person. Here, the State didn’t even meet the PC requirement:

Other than the deputy prosecutor’s assertions, it is unclear what information was brought to the attention of the trial court. The State urges us to consider the certification of probable cause in support of Garcia-Salgado’s arrest, but the record does not establish that the trial judge ever read the certification. Ideally, the CrR 4.7(b)(2)(vi) order itself would reference the evidence relied upon for the probable cause determination, but the order is silent, and nothing in the  transcript of the record reveals what information was before the trial court when it entered the CrR 4.7(b)(2)(vi) order. Because we do not know what the trial court considered, we cannot say that probable cause supported the order. Accordingly, we cannot find that the warrant requirement has been satisfied. It is the State’s burden to establish that an exception to the warrant requirement has been met. Garvin, 166 Wn.2d at 250.  The State has not established an exception in this case. Therefore, we reverse the Court of Appeals and remand.

WA Supreme Court: Prosecutors Can Flaunt Truthiness Clause in Testimony Contract

October 20, 2010

State v. Ish

This is a very bad morning comedically for me. I went on a run at 5:30. I came back. I went to work. I’d rather just take a nap. But here I am…handed a softball like “Ish”, and I’m too tired to make a poop joke. I’m too tired to make a running gag where I just substitute “ish” for is. My brain has just given up.

Anyhow, I suppose we should talk about the case. Well, its a 4-4-1, so the only law made is where the 4 converge with the other 4. Let’s see what they say. Turns out this is a murder case where the prosecutor entered into an agreement with a witness, which required he testify truthfully. During the testimony, the prosecutor whips out the contract and uses it to talk about how the witness will be truthful. Vouching, right? THe court agreed….or at least the lead opinion agreed. The concurrence says this really isn’t misconduct, because an adept defense attorney sees that as a gold mine for impeachment of the witness.

I tend to agree with both. I think an objection can be made, but wouldn’t you rather do the following:

A: Mr. Jones, you came here today to testify against my client?

W: Yes, I did.

A: And you were recommended leniency in exchange for your testimony?

W: Yes.

A: In fact, they made you sign a contract.

W: Yes.

A: They made you sign a contract that you would testify here.

W: Yes.

A: They made you sign a contract that you would testify here and that you would be truthful.

W: Yes.

A: And they wouldn’t give you leniency unless you signed this contract

W: No, they wouldn’t give it to me unless I signed.

A: They wouldn’t give you leniency unless you signed a contract to be truthful.

W. No.

A: So they didn’t trust you to testify truthfully unless they got it in writing?

The dissent by Sanders would have reversed. The law made here today is it was error, but the court of appeals is affirmed anyhow.

 

WA Supreme Court: A Boy Named Laura Will Wash That Conviction Right Out of His Hair

October 20, 2010

State v. Moeurn

Moeurn, who’s first name happens to be Laura, got involved in a little altercation involving a little 2X4. The little 2X4 happened to itself get into an altercation with someone’s head. The head was displeased about getting hit with a 2X4 and evidently called the police, who decided that Laura, and not the 2X4, should be charged.

Laura was eventually convicted and the court included an old juvenile adjudication in calculating the offender score. The conviction had washed out though:

In sum, a conviction that has washed out is not relevant to the calculation of an offender score. The Court of Appeals wrongly reversed the order by “scoring” a prior conviction before determining if it had washed out.

 

WA Supreme Court: Great Bodily Harm can only be Grossly Exceeded by Death

October 14, 2010

State v. Stubbs

Stubbs stabbed a guy in the neck after the ol’ “LOOK, A SPIDER” ruse.

You see, Stubbs had just smoked some meth and then went to a guys motorhome. The guy didn’t want to let him in because he thought that Stubbs would abscond with something which wasn’t his. Short of the motorhome itself, more meth, or a collection of comic books, I’m not sure what Stubbs would make off with. Anyhow, Stubbs must have taken offense because he shouted that there was a spider. Falling for the old “Meth-head shouting Look There’s a Spider!” ruse, the guy turned. Insert knife in neck.

This is why you should never trust a meth head when he tries to warn you about spiders. This also holds true for the bugs supposedly crawling beneath his skin. Instead just offer some calamine lotion.

Anyhow, why are we here? They placed an exceptional sentence on him based on the fact that “victim’s injuries substantially exceeded the level of bodily harm necessary to satisfy the elements of the offense.” Well, seeing as he was convicted of a crime which required great bodily harm (read: close to death), there’s really no way to “substantially exceed” great bodily harm without dying.

WA Supreme Court: No Conviction Needed for Probation Violation

October 14, 2010

City of Aberdeen v. Regan

Regan was on probation and had a restriction that he not engage in conduct which constituted “criminal violations of the law.” He of course did so, but wasn’t convicted. The standard for revoking probation is that the conduct be proven to reasonable satisfaction. Requiring a conviction would be changing that standard to “reasonable doubt”. Anyhow, because the City proved to a reasonable satisfaction that the violation occurred, YOINK…bye bye goes the probation.

WA Supreme Court: Court Invalidates Terry Stop Outside of Drug House; Could Have Reversed On Vehicle Search Grounds But Chose Terry Stop

September 25, 2010

State v. Doughty

Doughty stopped by a drug house for a couple minutes and drove away. An officer stopped him, and ran a records check and found he had a suspended. They searched incident to arrest and found meth.

Those familiar with the recent slew of search and seizure cases that have been coming down know that they can search the vehicle for something instrumental to the crime and in the immediate vicinity, but no longer have a full blanket ability to search the entire vehicle. Thus, the meth they found incident to arrest in the vehicle search is out:

Oooops. Helps if I read the whole opinion. The terry stop itself is out!

In contrast, here Bishop relied only on his own incomplete observations. There was no informant’s tip (which was the element we found most persuasive in Kennedyid. at 6-8) and no furtive movement. Bishop merely saw Doughty approach and leave a suspected drug house at 3:20 a.m. Bishop had no idea what, if anything, Doughty did at the house. The totality of these circumstances does not warrant intrusion into Doughty’s private affairs.

. . .

A more apt analogy rests with State v. Gleason, 70 Wn. App. 13, 851 P.2d 731 (1993). Based on the totality of the circumstances, the Gleason court held it improper to seize a person merely for exiting an apartment complex that had a history of drug sales.  Id. at 18.  The court reasoned that “this was the first time the defendant had been seen in the area, the officers did not know what occurred inside the apartment and neither officer saw him involved in the purchase of drugs. Further, there was no evidence Mr. Gleason was acting suspiciously, he was not carrying any unusual objects.”  Id. (citation omitted).  That statement describes the events in Doughty’s chronology almost exactly.

Officer Bishop lacked sufficient specific and articulable facts to seize Doughty.  No legal basis existed for the Terry stop.  If a Terry stop is unlawful, the fruits obtained as a result must be suppressed.  See Garvin, 166 Wn.2d at 254.  ”‘The exclusionary rule mandates the suppression of evidence gathered through unconstitutional means.’”  Id. (quoting State v. Duncan, 146 Wn.2d 166, 176, 43 P.3d 513 (2002)); see also Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Accordingly, suppression of the evidence obtained after the unlawful seizure in this case is proper.

Now, here’s what I’m seeing. The court really wanted to take a look at this Terry stop issue. They could have gotten rid of the conviction on the grounds I talked about earlier. They didn’t? Is this a commentary on our State

WA Supreme Court: Presumption of Competency for Child Witnesses; Burden on Person Opposing to Prove Otherwise

September 25, 2010

State v. S.J.W.

S.J.W. raped a developmentally disabled boy, 14 years old. At trial, S.J.W.’s attorneys challenged the competency of the victim as a witness. The trial court held that the burden was on S.J.W. to show that the witness was not competent. The court of appeals held that the burden was on the party offering the witness to show the witness was competent, not the other way around, but that the error was harmless.

Let me just pause right there to state why the court of appeals holding would be unruly. Every witness in a criminal trial offered by the State would have to go through a litany of questions as to their competency when the same wouldn’t really be in question. It makes sense that the burden is on the person challenging competency to prove incompetency. Anything else would be just plain silly.

The supreme court agreed with me of course. Its because I’m wise and incredibly handsome:

We may better frame this issue as whether a trial court should presume a child is competent or incompetent to testify. If a trial court should presume a child witness is competent, then the party challenging the child’s competency has a burden to rebut that presumption by establishing that the child is not competent to testify. Conversely, if a trial court should presume a child witness is incompetent, then the party offering the child witness has a burden to rebut that presumption by establishing that the child is competent to testify. As noted, the trial court here started with the presumption that 14-year-old children are competent to testify. The Court of Appeals would have trial courts presume that all children are incompetent to testify.

. . .

Because RCW 5.60.050 no longer makes any reference to age, the default rule for all witnesses should apply, i.e., that every person is presumed competent to testify. See RCW 5.60.020 (“Every person of sound mind and discretion . . . may be a witness in any action, or proceeding”); ER 601 (“Every person is competent to be a witness except as otherwise provided by statute or by court rule.”); see also State v. Smith, 97 Wn.2d 801, 803, 650 P.2d 201 (1982) (“Where there has been no such [adjudication of insanity], the burden is on the party opposing the witness to prove incompetence.”). Requiring a trial court to presume a witness is incompetent based solely on his age would be inconsistent with the current statutory scheme that gives no weight to the witness’s age. A six-year-old child (as in Allen) may be more competent to testify than an adult in a given case; no court should presume a child is incompetent to testify based upon age alone. Rather, we hold that courts should presume all witnesses are competent to testify regardless of their age.

At a Wedding.jpg

(The Prof: Incredibly Handsome and Wise)

WA Court of Appeals – Div. I: Sex Offenders Can Be Ordered to Stay Away from Kids

September 25, 2010

State v. Williams

I’m linking to the unpublished version of this on Google Scholar, but rest assured its now published. Unfortunately, Google Scholar is behind and doesn’t have the published version of this up.

This opinion shouldn’t come as a surprise. He was convicted of rape of a child in the third degree, then was homeless and failed to register. A small problem when you’re trying to make sure someone doesn’t reoffend. After picked up for failing to register, the trial court placed a no-contact with children unsupervised into his sentence. Oddly enough, Division I found that no contact with children is related to the crime of failing to register as a sex offender for an underlying offense of raping a child. Weird, I know. They really had to stretch the bounds of legal interpretation to get to that one. Darned activist judges.

Because this is quite possibly the shortest opinion outside of denial of review, The Prof is going to get crazy and post the whole thing after the jump. Watch out! You never know what may happen next!

 

(more…)

WA Court of Appeals – Div. I: Confrontation Clause Requires the Witness, Not a Piece of Paper for DOL Testimony

September 25, 2010

State v. Jasper

I apologize for the link to the Washington Courts site. Google Scholar is slacking with its polling, even though this opinion was entered almost a week ago.

Anyhow. Jasper was driving. He didn’t have a license. Because the Prof is cheap and lazy and doesn’t know how to add youtube to this properly, I will instead just give you a link to the kid from the Charlie Bit Me Video….his name is Jasper and he’s pushing Charlie around in a car. Its the first thing that came up, and its super cute!

http://www.youtube.com/watch?v=hbe1ZqMJ210

Anyhow, you can imagine what Jasper was charged with…not the cute Jasper in the video, the abstract one in the opinion.

So the State, to prove that there was no license came up with an affidavit from the DOL saying they did a search and found no valid license. Unfortunately, it’s hard to cross-examine an affidavit. This tends to violate the confrontation clause, which requires an opportunity to cross-examine. The supreme court analyzed our law in relation to the recent United States Supreme Court Case of Melendez-Diaz:

The affidavit is not merely a certification that the agency records attached to the affidavit were true and correct copies of records possessed by the DOL. Without question, such a statement would be of the type approved by Melendez-Diaz. 129 S. Ct. at 2539; see, e.g., United States v. Mallory, __ F. Supp. 2d __, 2010 WL 1286038, *3 (E.D. Va. 2010) (“[T]he FedEx custodian’s certification in this case does not comment on the content or meaning of the record. . . . [and] does not attempt to describe or decipher the content of the business record” but merely certified that the attached documents were true copies of records kept in the regular course of business).

Instead, the affidavit herein contains ex parte statements made for the purpose of establishing the fact that Jasper was driving with a suspended license on the day of the collision. The affidavit first asserts that the affiant performed a diligent search, implying that the person searching the records knew what records to search for, knew how to find them in the database, and conducted the search correctly. The affidavit next states that Jasper’s license was suspended on a particular day. This statement explains what the results of the records search revealed and what the witness concluded from the records searched. These statements are testimonial because they constitute factual assertions, intended to prove an element of a crime charged. They are not mere statements of the authenticity of the attached records themselves. The affidavit also contains an indirect assertion regarding the non-existence of a record, impliedly asserting that no agency records exist indicating either that Jasper avoided suspension of his license by properly attending to the prior citations referenced in the two letters or that his license was ever reinstated following such a suspension. A statement asserting that a particular record does not exist, when offered to establish that fact, is testimonial.

Let’s hope Jasper remembers to get his license…and hopefully some insurance…before his next crash.

 

 

Court of Appeals: Div. II – Defendant Did Have a Clue As To His Guilty Plea, Despite Claim of Incompetency

September 25, 2010

State v. DeClue

Thomas DeClue pled guilty to second degree manslaughter and first degree unlawful possession of a firearm. DeClue later moved to withdraw his guilty plea because he claimed he was on medication and thus was unable to knowingly, voluntarily, and intelligently waive his constitutional rights. I guess you could say he didn’t have DeClue as to what he was doing! Sorry, I couldn’t resist.

Get a clue

The trial court held an evidentiary hearing and several people testified as to DeClue’s competency at the time he plead guilty. A nurse from the jail testified that DeClue had taken several medications at different times including Vicodin, BuSpar, Skelaxin, and Seroquel. I guess incarceration wasn’t too painful.

DeClue testified that the medications made him feel like a zombie and he wasn’t able to process information. Others, including inmates at the jail, also testified that DeClue was drowsy and couldn’t concentrate. However, DeClue’s attorney when he entered the plea testified that DeClue was sharp, astute, paid attention, and had no problems communicating. The judge also reviewed a videotape of the plea. The judge held that entry of the plea did not violate DeClue’s constitutional rights. DeClue appealed.

DeClue contended that since he claimed he was not competent to enter the plea, the statute required that a competency hearing was required not an evidentiary hearing. “If a defendant supports his motion to withdraw a guilty plea with substantial evidence of incompetency, the trial court must either grant the motion or hold a formal competency hearing under RCW 10.77. 060.” The important part of this rule is that the claim must be supported by “substantial evidence of incompetency.” If substantial evidence is lacking, then the motion is denied and no competency hearing is required.

DeClue’s claim that the judge made an error by having an evidentiary hearing rather than a competency hearing failed. The evidentiary hearing was held for the purpose of exploring DeClue’s claim that he was not competent. That exploration ended in a finding that there was no substantial evidence of incompetency and thus no competency hearing was necessary.

DeClue also challenged the trial court’s finding that he was competent. However, given the nurse’s testimony that DeClue didn’t appear intoxicated, DeClue’s attorney’s testimony, and the judge’s own recollection (with assistance from video) of the plea, the Court of Appeals could not find that the judge abused her discretion. Affirmed! Get a clue.


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