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Court of Appeals: Div. III – Six Months Not “Shortly After”…This Time

August 4, 2010

State v. Combs

This one is nice and short. Combs was released from prison on a drug possession charge. Six months later he was charged with attempting to elude a police officer. RCW 9.9A.535(3)(t) allows a court to impose an exceptional sentence if the “defendant committed the current offense shortly after being released from incarceration.” This is referred to as “rapid recidivism.” Say that five times fast!

This case came down to what does “shortly after” mean? Is it a week? A month? Six months? The Court of Appeals held that considering the facts of this case, six months was not “shortly after.” But they weren’t going as far as to draw a line in the sand at six months for every case. The reasoning being that if the defendant had no opportunity to re-offend for six months or immediate access to the means to re-offend (i.e., it takes a while to find contraband), then it could be considered “shortly after.” In addition, some crimes “require a lengthy period of time to plan or come to fruition.” It takes time to knock over a liquor store! Combs exceptional sentence was reversed.

Posted in Criminal Law, Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, Sentencing, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Assault Was Part of Rape and Thus Cannot Convict for Both Crimes

July 29, 2010

State v. Williams

This is a lovely story about a swell guy (note sarcasm). Floyd Williams was convicted on two counts of rape and one count of second degree assault with sexual motivation, which involved two victims. The cases had been consolidated and tried together. The trial court admitted testimony from the victim of Floyd’s prior rape conviction. Floyd was sentenced to life imprisonment as a persistent offender based on these convictions and the prior rape conviction.

Floyd appealed the admittance of the prior victim’s testimony. In addition, Floyd claimed that the assault charge should have merged with the rape charge.

Evidence Rule 404(b) prohibits evidence of other crimes to show that the defendant acted in conformity with that character-had a propensity to commit this crime. But evidence of prior crimes may be admitted for other purposes, “such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Since the facts of the earlier rape were very similar to the facts of both the recent rapes, the trial court held that it showed a common scheme and the prejudice of the testimony was minimal. The Court of Appeals agreed.

Next Floyd argued that he could not be convicted of both assault and rape as the assault was part of the rape and the assault had no independent purpose. Since the assault on the victim before and during the rape is what raised it to the level of First Degree Rape, Floyd couldn’t be convicted of both charges. There was merger of the two crimes and thus the conviction for assault was vacated. Boy, I bet ole Floyd was glad to get that assault off his record. I mean what would his employer think?

Three strikes and you’re out Floyd. Out for life! Floyd also made some Pro-se arguments including that the forensic lab who conducted the tests on the victims had a history of making mistakes. But at trial he argued that the sex was consensual. Nice try Floyd.

Posted in Criminal Law, Division III, Double Jeopardy, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Rules of Evidence, Sentencing, Sex Offender, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Fifth Amendment Violation Was Harmless Error in Conviction of Child Rape

July 4, 2010

State v. Epefanio

Mr. Epefanio was a teacher’s aide and basketball coach at Salk Middle School in Spokane, Washington. Apparently Mr. E had a thing for the young girls at the school. He asked Brianna Summers to help him with the basketball team and they started a sexual relationship when Brianna was 15 years old. Mr. E was 25!

Eventually Brianna got pregnant, moved in with Mr. E, and then the honeymoon was over. Brianna was now 18 years old (probably too old for Mr. E). After the couple separated, Brianna determined that what Mr. E did was wrong. She was older and wiser! She sued the school district and reported Mr. E to the police. Mr. E was charged with Sexual Misconduct in the First Degree and Rape of a Child in the Third Degree.

At the criminal trial, Brianna testified about her sexual history with Mr. E. A friend of Brianna’s testified that she hung out with the couple and witnessed them having sex. Brianna’s boyfriend Jared (she had a boyfriend through all of this?!) testified that he had found out about the relationship, told Brianna’s parents, and then confronted Mr. E in front of Brianna’s parents.

Mr. E moved to dismiss the case after the State rested. The court dismissed the misconduct charge, but not the rape charge. On defense, Mr. E took the stand in his own behalf and denied having sex with Brianna when she was 15. He would never do such a thing! He waited until she was 16 and then knocked her up. When the State attempted to cross-examine Mr. E about Jared’s confrontation, the defense objected as it was outside the scope of direct examination. The court agreed. However, the State called Mr. E as a rebuttal witness and examined him on the same subject (the confrontation) and the court allowed it.

The jury convicted Mr. E and returned a special verdict that the offense was "part of an ongoing pattern of sexual abuse of the same victim under the age of 16 years manifested by multiple incidents over a prolonged period of time." The stand range for this crime is 12 to 14 months, but with the special verdict, the court imposed an exceptional sentence of 20 months. Mr. E also moved for relief from judgment based on the argument that the State violated his Fifth Amendment privilege against self incrimination when he was called as a rebuttal witness. The court denied the motion. Mr. E appealed the conviction and the exceptional sentence.

The Court of Appeals held that there was sufficient and persuasive evidence to convict Mr. E. They also held that it was a violation of Mr. E’s Fifth Amendment right against self incrimination to call him as a rebuttal witness regarding testimony outside the scope of direct examination. HOWEVER, "If the untainted evidence is so overwhelming that it necessarily leads to a finding of the defendant’s guilt, the error is harmless." State v. Koslowski. So even if you remove the tainted evidence (Mr. E’s testimony about his confrontation with Jared), there was still ample evidence to convict him. HARMLESS ERROR!! The Court of Appeals also confirmed the exceptional sentence.

I’m sure the prison population will help Mr. E straighten out his penchant for young girls.

Inmates

Posted in Criminal Law, Division III, Fifth Amendment, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Sentencing, WA Court of Appeals | 1 Comment »

Court of Appeals: Div. III – Victim Turns to Defendant for Hindering Investigation

June 13, 2010

State v. Budik

This is an unusual case in that a victim of a crime ends up being the defendant. Budik left a party with Walton who was a gang member. Walton was driving and Budik was in the passenger seat as they began to leave the party. Eyewitnesses stated that three individuals (Miller, Davis, and Nave) were standing at the passenger window of the vehicle when there were shots fired. Walton was killed and Budik was injured. Witnesses stated that Davis was the shooter and Miller transported him away from the scene. Budik said he did not know who shot him and refused to cooperate with the police. The police found a single shell casing inside the vehicle and determined that the shooter must have shot inside the vehicle and thus Budik must have been able to identify the shooter. Budik stated that he was bent over getting his drink went the shots were fired and thus didn’t see who it was.

Gangmember with gun

However, two days later, Budik told Walton’s mother that Nave was the shooter. Ms. Walton related this to the police and they then charged Budik with First Degree Rendering Criminal Assistance.

"A person is guilty of rendering criminal assistance in the first degree if he . . . renders criminal assistance to a person who has committed or is being sought for murder in the first degree or any class A felony or equivalent juvenile offense." RCW 9A.76.070(1). "Rendering criminal assistance" is defined in relevant part as,

with intent to prevent, hinder, or delay the apprehension or prosecution of another person who he knows has committed a crime . . . or is being sought by law enforcement officials for the commission of a crime . . . he: . . . .(4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person.

Davis and Miller were charged with murder, but Nave was never charged because there was no direct evidence against him. At Budik’s trial, he stated that he never told Ms. Walton that Nave was the shooter and that he never attempted to mislead authorities or send them in the wrong direction. Detectives in the case attributed difficulties in the investigation to the general fear in the community of gang members. The jury convicted Budik as charged.

Budik appealed claiming that there was no evidence that he intended to prevent the apprehension of the assailants and there was no evidence that the officers relied on his statement or that it actually hindered the investigation. He argued that the evidence only showed that he feared retaliation and that his actions were meant to prevent that retaliation. However, the Court held that based on this motive the jury could infer that his intent was to prevent, hinder, or delay the apprehension and prosecution of the murderers. In addition there is nothing in the statute that requires that the police rely upon the deception. A detective testified that Budik’s testimony would have been key as to Nave’s involvement in the shooting.

Budik then argued that he had a constitutional right to not answer police questions. However, the right to remain silent is a right to not self incriminate. Budik was not a suspect; he was a witness. In addition, Budik was prosecuted for lying, not remaining silent.

Budik made one last argument that he had ineffective assistance of counsel because his attorney did not submit a jury instruction for duress. However, Budik’s argument at trial was not that he was under duress and that was why he refused to cooperate. His argument was that he simply didn’t know who the shooter was. Thus the ineffective assistance of counsel argument failed as well.

So the victim of a shooting goes off to jail. But I’m hoping I will never know the kind of fear that some communities have of cooperating with the police and pointing out criminals. It must be a very lost feeling.

Posted in Confrontation Clause, Criminal Law, Division III, Fifth Amendment, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Court Finds No Contempt, Just Parents’ Inability to Communicate

June 12, 2010

Williams v. Williams

Mr. and Ms. Williams (no relation to this writer…I think) had two children together. They didn’t play nice and thus the court was used as a playground monitor to make sure they followed the rules. The rules in this case were contained in the parties’ parenting plan. It has been my experience in family law that people either take one of two roads when it comes to parenting plans: either they file the parenting plan away after the divorce is over and never refer to it again or they have it memorized and use it as a sword to constantly chastise their ex-spouse. The key difference here being the ability to communicate and work things out without needing a document to tell the parents how to raise their children TOGETHER. Divorce does not end the relationship if you have children. It just makes it different.

Fighting Parents

In this case, Mr. Williams cried foul to the court and alleged 11 counts of contempt on his ex-wife for failing to follow the parenting plan. Ms. Williams told the court that her actions were justified based on Mr. Williams’ abusive nature and drinking. (I swear they’re not related). “The commissioner found both parents’ bad behavior stemmed from mutually bad communication. The commissioner further found noncompliance by the mother may have been justified given Mr. Williams’ behavior that invited Ms. Williams’ responses.” The motion for contempt was denied.

Mr. Williams appealed claiming that the trial court erred in combining the 11 contempt allegations based on separate incidents. The Court of Appeals quoted In re Marriage of Eklund, 143 Wn.App. 207, 213, 177 P.3d 189 (2008): “It is well within the trial court’s discretion to hold that, when an initial petition alleges separate violations of a single court order, the incidents constitute a pattern of conduct that merges into a single finding of contempt when these acts are simultaneously declared to violate the order.” Therefore allegations of separate violations can merge into a single finding of no contempt. Mr. Williams also claimed that the commissioner’s findings were incorrect, but the Court of Appeals did not agree.

The bad part of this whole thing is that once these kids are over the age of 18 (which one of them now is), they will have to be the referees in this ugly dance for the rest of their lives. Graduations, weddings, holidays, even funerals will become the battle field for these two individuals to display their inability to just get along for the sake of their children.

Referee

Posted in Contempt, Division III, Family Law, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Doctor’s Claims Against Hospital and Staff Very Costly

June 3, 2010

Perry v. Rado

Dr. Perry is a gynecologist who practices medicine through his professional services corporation in Kennewick, Washington. In the fall of 2006, he was a member of the medical staff at Kadlec Medical Center (KMC) until his staff membership and clinical privileges were terminated. I bet it’s difficult to practice obstetrics and gynecology when the hospital won’t let you through the front door. So Dr. Perry sued the hospital and several staff members including Drs. Rado, Bowers, Rawlins, and Occhino who all participated in Dr. Perry’s peer review that resulted in his termination. Drs. Rawlins and Occhino also are members of an OB/GYN practice that competes with Dr. Perry’s office. I guess that’s one way to eliminate the competition.

Apparently, Dr. Perry had a problem with one of his surgeries and he was suspended. Perry entered into an agreement with KMC that he would not conduct certain types of surgeries without a “monitor” to assist him. He violated that agreement and after a hearing (which resulted in a finding in his favor) and an administrative appeal, his privileges were permanently suspended. Dr. Perry then filed a suit in federal court where all but his state claims were dismissed. So Dr. Perry filed suit in superior court alleging seven claims. Most of the claims were dismissed under CR 12(b)(6) except for one and Dr. Perry voluntarily dismissed that one. The trial court awarded KMC over $380,000 in fees and costs. OUCH!! Dr. Perry appealed the dismissals under CR 12(b)(6).

RCW 7.71.030(1) states: “This section shall provide the exclusive remedy for any action taken by a professional peer review body of health care providers …, that is found to be based on matters not related to the competence or professional conduct of a health care provider.” Further, Section (2) states “[a]ctions shall be limited to appropriate injunctive relief, and damages shall be allowed only for lost earnings directly attributable to the action taken by the professional review body.” The claims that Dr. Perry was pursing were not related to the competence or professional conduct of a health care provider so his only remedy was injunctive relief. Dr. Perry was not seeking injunctive relief; he was seeking damages other than for wage loss. The trial court had permitted Dr. Perry to amend his complaint to seek reinstatement of his medical privileges. This would have been injunctive relief. But Dr. Perry did not amend his complaint. Whoops! Affirmed.

Crazy Doctor

And to pour more salt in the wounds, RCW 7.71.030 requires an award of reasonable attorney fees and costs to the “prevailing party.” Guess who the “prevailing party” was? Not Dr. Perry. DOUBLE OUCH!! He must have paid close to a total of $1 million in attorney fees and costs when this was all done. After this experience, he may want to take up proctology.

Posted in Attorney's Fees and Costs, Civil Procedure, Division III, Judge Kevin M. Korsmo - Conconr in Majority, Judge Stephen M. Brown - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, Prevailing Party, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – Bank, Not Decedent, Intended Right of Survivorship; Survivor Not Entitled to Over $234,000

May 3, 2010

Taufen v. Estate of Kirpes

This case is a good example of how amidst all the emotions surrounding death, greed can push the rest aside.

Maria Kirpes was dying of cancer and decided to get her affairs in order. Her assets included her house and several thousand dollars held in investment accounts. She met with her lawyer to have him draft her last will and testament. She planned on leaving a majority of her estate (valued at approximately $575,000) to her late husband’s cousins and a considerable amount to the local church. She also bequeathed her home (valued at approximately $138,000) to her “good friend and handyman” Mr. Yochman.

Ms. Kirpes had a joint account with her former caretaker and so she decided to close that account and open and joint account with Mr. Yochman. She told the banker, Judy Stapleton, that she wanted a joint account with Mr. Yochman. Well Ms. Stapleton took it upon herself to make the account a joint account with right of survivor ship. This would result in Yochman automatically acquiring the monies in the account upon Ms. Kirpes’ death. This is not what Ms. Kirpes intended and Ms. Stapleton acknowledged at trial that Ms. Kirpes did NOT request that the account have a right of survivorship clause.

The will was drafted and then Ms. Kirpes cashed out one of her investment accounts worth over $178,000 and deposited the monies into her joint account. I think you can see the writing on the wall here. Ms. Kirpes died and Mr. Yochman thought he had hit the lottery. At the time of her death, the joint bank account contained over $234,000. Mr. Kirpes took the money via the right of survivorship and also took the house that was left to him. Ms. Kirpes’ estate demanded the money from the joint account be returned to the estate. Yochman gave the money to the estate and then sued for the return of the money. The trial court ruled on behalf of Yochman and the estate appealed.

There is a rebuttable statutory presumption that “[f]unds belonging to a deceased depositor which remain on deposit in a joint account with right of survivorship belong to the surviving depositors unless there is clear and convincing evidence of a contrary intent at the time the account was created.” RCW 30.22.100(3). The estate argued that the contract opening the joint account required a meeting of the minds and since Ms. Kirpes did not intend to open the account with a right of survivorship there was no meeting of the minds.

The amazing thing is that the trial court found that it was Ms. Kirpes’ intention that the account have a right of survivorship. The only fact supporting this supposed intention was the account card that Ms. Kirpes signed to open the account. That card created the rebuttable presumption of intent. However, “[p]resumptions are the ‘bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.’ The sole purpose of a presumption is to establish which party has the burden of going forward with evidence on an issue.” Man, I love that quote!

Well the sunshine of actual facts here are simply that Ms. Stapleton was the one who chose to make the account with a right of survivorship, not Ms. Kirpes. And with that sunshine of facts, disappears the presumption that the money in the account belongs to Yochman. Judgment reversed!

“Presumptions are the ‘bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.”  I just wanted to say that one more time.

Bats

Posted in Division III, Judge Dennis J. Sweeney - Draft Majority, Judge Kevin M. Korsmo - Conconr in Majority, Judge Teresa C. Kulik - Concur in Majority, Right of Survivorship, WA Court of Appeals, Wills | 3 Comments »

Court of Appeals: Div. III – Court Affirms Termination of Mother’s Parental Rights

April 30, 2010

In re the Welfare of A.G. and L.S.

This was a very sad case. Ms. G is the mother of A.G. (now age 8) and L.S. (now age 5). The State removed the children from Ms. G’s care in 2005 and they were declared dependents in August 2005. In October 2006, Ms. G had another child (M.S.). M.S. never left the care of Ms. G and never lived with A.G. or L.S. In March 2007 the State petitioned to terminate Ms. G’s parental rights as to A.G. and L.S. The petition stated that the reasons for termination were drug and alcohol abuse, neglect of the children, domestic violence, and serious mental health problems. The facts set forth an ugly history. Ms. G made an effort to clean up her act, but the facts reflected that she just wouldn’t go 100% of the way. This was evidenced by her refusal to cooperate with mental health evaluations and urine tests for drugs. In addition, the assessments of the children’s attachment to their mother were not positive.

In the end, the court terminated Ms. G’s parental rights and disallowed any visitation between M.S. and the other two children. Ms. G appealed.

Unfortunately, the Court of Appeals agreed with the trial court and found that the evidence did support the trial court’s findings and affirmed those findings. However, the Court of Appeals did reverse the trial court’s order regarding the visitation between M.S. and the other two children. The court did not have jurisdiction over M.S. because he was not a party to the action. A little silver lining.

What I found strange about this case was the fact that in the midst of terminating the parental rights of the mother as to two of her children, the third child was completely ignored. If she wasn’t a fit parent as to two of the children, then why was she allowed to keep the third?

Posted in Dependancy Gaurdianship Proceedings, Division III, Judge Dennis J. Sweeney - Draft Majority, Judge Stephen M. Brown - Concu in Majority, Judge Teresa C. Kulik - Concur in Majority, Parentage, WA Court of Appeals | 1 Comment »

Court of Appeals: Div. III – Court Holds That A Judgment “Lien” Can Expire, But Not the Judgment

April 29, 2010

Krueger v. Tippett

This was a very fact intensive case. In summary, the Kruegers borrowed money from the Tippetts several times beginning in 1976. The loans were secured by real estate and an assignment of the proceeds of a $50,000 life insurance policy on Hal Krueger. The Kruegers filed for bankruptcy in 1981 and subsequently the bankruptcy trustee agreed with the Tippetts to abandon any claims the bankruptcy estate had in the life insurance policy and some other Krueger assets. The Tippetts were allowed to proceed against the policy and the other assets. They obtained a judgment in 1986 in the amount of $43,186.54 and began to foreclose on the Krueger home. However, the Tippetts agreed to release the lien and stop foreclosure procedure for Hal Kruegers’ reaffirmation of the assignment of the life insurance policy. The Tippetts released the lien and filed a partial satisfaction of judgment acknowledging payment of $30,000. So the Tippetts still had a judgment.

Well eventually ole’ Hal kicked the bucket in 2007and the Tippetts came calling for their money from the life insurance proceeds. However, Hal’s wife also claimed the proceeds as the named beneficiary and stated that the Tippetts had let their 1986 judgment expire. The trial court ruled that since the bankruptcy trustee abandoned the insurance policy, it was completely assigned to the Tippetts. Ms. Krueger disagreed and she appealed the decision.

So what was the status of the life insurance policy once the bankruptcy trustee abandoned it? Krueger argues that once abandoned, the property reverts back to the debtor (Krueger). Tippett argues that the abandonment was a transfer from the trustee to them.

The Court of Appeals agreed with Krueger. A bankruptcy trustee cannot abandon property of the estate to a creditor. The property reverts back to the debtor. However, the Tippetts were free to pursue their interest in the policy once it was released.

Krueger also argued that since the Tippetts had taken no action on their judgment it had expired. She pointed out that the judgment was obtained in 1986 and thus it expired in 1996. The Court of Appeals disagreed. The reasoning is that the reassignment of the policy was executed after the judgment. The policy was just a method of how the judgment would be paid. Krueger argued that since the judgment had expired, payment was not enforceable. However, the Court pointed out that the judgment lien had expired, not the judgment itself. Huh?

“Washington’s statutory framework for enforcing judgments focuses on the judgment lien. Entry of judgment creates a lien. When that lien expires, there is no longer any statutory method of enforcing the judgment, and nothing can be done to revive the lien. The statutes, however, address the judgment lien rather than the underlying judgment itself. The parties have not provided, and we have not found, any authority that the judgment itself ceases to exist when it becomes unenforceable…The 1986 judgment, while unenforceable, was still valid and served to establish the value of the assignment of the insurance proceeds. The judgment awarding the entire proceeds to the Tippetts is affirmed.”

So the Court of Appeals affirmed the trial court, but just not for the same reasons.

Okay, that just made my head hurt.

Headache

Posted in Bankruptcy, Division III, Judge Dennis J. Sweeney - Concur in Majority, Judge Kevin M. Korsmo - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, Judgment, Lien, WA Court of Appeals | Leave a Comment »

Court of Appeals: Div. III – No Relief for Pot Grower Who Cries Foul at Trial

April 27, 2010

State v. O’Connor

When the officers came knocking on Mr. O’Connor’s door, he had 131 marijuana plants in various stages of production, 6.5 pounds of drying harvested marijuana, and a triple beam scale inside his home. The officers had a search warrant based on an informant’s tip. O’Connor later threatened that informant and told him he owed O’Connor $50,000 for “lost weed” and attorney’s fees.

So the State charged O’Connor with manufacturing, possession with intent to deliver, and two counts of harassment related to the threats to the informant. Before the trial started, O’Connor brought a motion to “open the court.” O’Connor argued that the routine entry-searches at the courthouse doors restricted his right to a public trial. The trial judge informed O’Connor that the courtrooms were open to the public, but the searches were for the safety reasons. O’Connor asked that either the trial be moved to Gonzaga University or courthouse searches stop. That was denied. What a surprise!

On the fourth day of trial, the Spokane County Prosecutor’s office Victims and Witnesses Unit arranged a display in the courthouse in remembrance of murder victims. The display involved multiple pairs of shoes symbolizing victims of violent crimes. O’Connor requested a mistrial because the display prejudiced the jurors on his case. Murder victims=pot grower? Not seeing that one. The judge questioned the jurors and actually dismissed one who said she was affected by the children’s shoes, but denied the motion for a mistrial.

The jury found O’Connor guilty of the two drug charges, but not on the harassment charges. O’Connor appealed the display mistrial motion, the sufficiency of the evidence, the public trial motion, and “pro-se additional grounds.”

“A trial court should grant a mistrial when a trial irregularity is so prejudicial that it deprives the defendant of a fair trial. A trial irregularity is not prejudicial unless with reasonable probability the trial’s outcome would have differed if the error had not occurred. Similarly, to establish prosecutorial misconduct, the defendant bears the burden to establish the conduct complained of was both improper and prejudicial.” (Citations omitted)

 

Since the State of Washington has never dealt with the potential prejudice of courthouse displays, it turned to outside authority. In Missouri, the court of appeals held that even a domestic violence display in the courthouse did not prejudice a murder case defendant, stating, “even if we assume, arguendo, that members of the panel actually saw the display, we cannot say that this alone created an inherently prejudicial environment sufficient to deprive the appellant of a fair trial and require a new trial." Division III agreed and pointed out that O’Connor was not convicted of violent offenses. In fact he was acquitted of the harassment charges. In addition, the trial judge questioned the jury to determine if they had been prejudiced. Affirmed. However, I do agree with the court in Missouri that courthouse lobbies are probably not appropriate venues for these types of displays. Don’t give these defendants a way out.

O’Connor also argued that there was insufficient evidence to convict him with intent to deliver. Are you kidding me? 131 plants, 6.5 pounds, and a scale? All for personal use I bet. Affirmed!

Cheech

It’s all for personal use, I swear!

And finally O’Connor argued that he was denied an open trial because of the courthouse entry searches. Here the State never requested a closed courtroom. The courtroom was open to the public subject to search. Apparently O’Connor wanted a gun totting audience to watch his trial. I wonder if he thought more people should be in attendance at his big day in court and concluded the only reason the courtroom was empty was because of the searches. The courthouse is full of criminal trials in front of empty courtrooms. No spotlight for a pot grower. The Court of Appeals thought O’Connor’s argument was “sketchy, confusing, and unpersuasive.” Did I mention that O’Connor brought this appeal on his own without an attorney (pro-se)? Once again, affirmed.

Posted in Criminal Law, Division III, Evidence, Judge Dennis J. Sweeney - Concur in Majority, Judge Stephen M. Brown - Draft Majority, Judge Teresa C. Kulik - Concur in Majority, WA Court of Appeals | Leave a Comment »

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