Articles Posted in Criminal Law

A defendant in a Washington criminal case is entitled to a self-defense jury instruction if he shows some evidence of self-defense.  The use of force by a person “about to be injured” is not unlawful if it is not greater than necessary. RCW 9A.16.020(3).  Another statute provides that a homicide is justifiable if the person has “reasonable ground to apprehend” “great personal injury.” RCW 9A.16.050.  Case law has held, however, that the “great personal injury” standard applies when the defendant used deadly force, even if no one was killed.

A defendant recently challenged his convictions for second degree assault with firearm enhancements, arguing court erroneously instructed the jury on the “about to be injured” standard instead of the “great personal injury” standard.

According to the appeals court’s opinion, the defendant lived in a mobile home park with a homeowners association. After the defendant informed the homeowner association’s president’s she could not be at another mobile home removing the previous resident’s belongings, the defendant and the association president had an altercation.

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Washington juvenile courts may impose “local sanctions” for certain low level offenses committed by a juvenile offender.  Local sanctions include up to 30 days confinement, up to 12 months community supervision, up to 150 hours community restitution, or up to a $500 fine. RCW 13.40.020(18).  The juvenile court may impose conditions on a juvenile defendant sentenced to local sanctions pursuant to its authority to impose community supervision. If a juvenile defendant is sentenced to more than 30 days, however, he or she must be committed to DCYF.  RCW 13.40.160. The juvenile offender may be subject to conditions as part of DCYF’s parole program after the sentence has been completed.  Certain conditions are required under the parole program, while others are permitted.  The statute specifically permits the secretary to prohibit the juvenile offender from having contact with specific people or classes of people. RCW 13.40.210(3)(b)(ix).

Recently, a juvenile defendant appealed a court’s order prohibiting him from contacting the victims of his offense. According to the appeals court’s opinion, the juvenile defendant fired a flare gun into a house resulting in a small fire.  Three people were inside.

The defendant ultimately pleaded guilty to first degree arson in juvenile court. The court ordered him to 103 to 129 weeks in a Department of Children, Youth, and Families (“DCYF”) rehabilitation facility. The state requested a no-contact order for the people who had been inside the house. The court’s disposition order contained a provision prohibiting the defendant from contacting those three people for an unstated period of time.  The court also imposed a 10-year no contact order.

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When a Washington criminal defendant is charged with an offense with different degrees, the jury may generally find him or her guilty of any inferior degree rather than the degree charged.  RCW 10.61.003.  A defendant recently successfully challenged his first degree conviction after the court denied his request for a jury instruction for the second degree offense.

According to the appeals court’s opinion, witnesses heard gunshots and saw the defendant leave a burning trailer.  He was arrested that night.

The defendant does not speak English, so a lieutenant served as an interpreter during his interview. The defendant admitted to setting the fire and firing shots in the ground.  He said he had gone to the location to kill someone he thought was threatening him.  He said he had been to the trailer three times and it had always been empty, so he thought it was abandoned.

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The Fifth Amendment to the U.S. Constitution and the Washington Constitution both protect individuals from being charged multiple times for the same offense.  Generally, in a Washington criminal case, a defendant may only be charged with multiple counts of the same crime if each is based on a separate criminal act.

A defendant recently challenged his convictions for violation of a court order, arguing that multiple convictions for violation of separate no-contact orders violated double jeopardy principles when the charges were all based on the same act.

There were three no-contact orders entered against the defendant protecting the same person.  After the defendant contacted that person, he was arrested and charged with violation of a court order.

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Identification of the defendant as the person who committed the allegedly criminal act is an important part of a Washington criminal case.  When there is video of the incident, however, the jury may be able to make the identification without the assistance of opinion testimony from a witness.  Identification from a video constitutes opinion testimony.  A lay witness may provide opinion testimony only if it is rationally based on the witness’s own perception, helpful in understanding the testimony or determining a fact at issue, and not based on specialized knowledge.  ER 701.  Washington courts have held that witness identification of a defendant in a surveillance photograph may invade the province of the jury, but the testimony may be admissible in certain circumstances.  A lay witness may testify about the identity of a person in a surveillance photo if the witness is more likely to correctly identify them from the photo than the jury is. This may occur when the defendant has had multiple contacts with the witness and the video is unclear or the defendant’s appearance has changed since the video was taken.

A defendant recently successfully challenged a conviction after a police officer provided identification testimony.

According to the appeals court’s opinion, the defendant went into a grocery store with a woman and a child.  The woman was caught on security footage putting items in her purse, but the defendant and the child were not visible in the video at the time.  A loss prevention employee saw the woman’s actions on video surveillance.  The woman paid for some items, but not those she put in her purse.  The group left the store together.

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For a Washington criminal defendant to be convicted, both the U.S. and Washington constitutions require a unanimous jury to find the charged criminal act has been committed.  A unanimous jury can be an issue where the state charges only a single count but presents evidence of multiple criminal acts.  If the state does not choose a single act, then the jurors should be instructed that they must unanimously find the same criminal act was proved beyond a reasonable doubt in order to convict.  A defendant recently challenged his conviction on the grounds he was denied his right to a unanimous jury verdict after the trial court failed to provide a unanimity instruction.

The state charged the defendant with one count of felony harassment of “[alleged male victim] and/or [alleged female victim].”  The appeals court noted that harassing each of the alleged victims would be two distinct crimes that could have been charged as separate counts.  The jury was not given a unanimous verdict instruction.

To prove felony harassment under RCW 9A.46.020(2)(b)(ii), the state had to prove the defendant threatened the alleged victim by “threatening to kill the person threatened or any other person,” and that the threatened person reasonably feared the threat would be carried out.  The Washington Supreme Court has held that the “person threatened” is the person who is the target of the coercion or intimidation.  A person may be threatened by a threat against another person.  To prove felony harassment, the state must show that the threatened person had a reasonable fear the threat would be carried out.

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Washington drug cases often turn on the legality of the search that found the evidence.  Both the federal and Washington state constitutions provide protection from unreasonable searches and seizures.  Generally, searches must be conducted under a lawful warrant, unless an exception applies.  A man recently successfully challenged his conviction on the grounds the trial court erred in applying the Terry and community care taking exceptions to the search that found the evidence used against him.

A Starbucks employee called 911 for assistance removing a sleeping person from the store.  According to the court’s opinion, the officer tried to wake the defendant, but he was unresponsive.  The officer started to suspect the defendant was under the influence of drugs.  He noticed a metal utensil partially sticking out of the defendant’s pocket.  He was concerned it was a knife, needle, or other sharp object.  He took it out of the defendant’s pocket and found it was a cook spoon with a dark brown residue and burn marks.  The officer determined he had probable cause for an arrest and kept searching, finding drugs and other drug paraphernalia.

The officer then performed a “hard sternum rub” to wake the defendant.  He told the defendant he was under arrest, handcuffed him, and took him to an aid car.

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Washington criminal case law has established that defendants are entitled to be free of shackles at trial, unless there are extraordinary circumstances.  Restraints may affect a number of constitutional rights, including the presumption of innocence, the right to testify, and the right to consult with counsel.  Trial courts do, however, have discretion in deciding on courtroom security measures, including restraints, as long as they base that discretion on facts in the record.

In a recent case, a defendant challenged his conviction after he was shackled in pretrial appearances and required to wear a leg brace at his jury trial.  At his first court appearance, the defendant was shackled in handcuffs and a belly chain.  His attorney moved for removal of the shackles, arguing they violated the defendant’s due process rights under the Fifth Amendment and the Washington State Constitution.

The trial court held a consolidated hearing on all motions related to restraint and removal before it.  The court granted the motions “to the extent the court agrees there are less restrictive means of furthering the compelling government interest of courtroom security.”  The court proposed videoconferencing as an alternative, but acknowledged it would not be implemented for over a year.  The court indicated its adoption of the sheriff’s policies would remain in effect until videoconferencing was implemented.  The policy required leg braces at trials.

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In a Washington criminal case, the state must prove all of the elements of the crime.  In a recent case, a defendant challenged her conviction for second degree organized retail theft, arguing that the state had not shown that she obtained goods from a “mercantile establishment” when the alleged crime involved online catalogs.

Second degree organized retail theft occurs when the defendant steals property worth a total of at least $750 from one or more “mercantile establishments.” RCW 91.56.350.

According to the appeals court’s opinion, the defendant used her neighbors’ names and accounts to place three orders from online catalogs.  One of the other residents reported the incident to the complex office and the police.  The defendant was charged with second degree organized retail theft, two counts of second degree possession of stolen property, and three counts of first degree identity theft.

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Article I, section 7 of the Washington State Constitution provides individuals a privacy right that is greater than the protection provided by the Fourth Amendment to the U.S. Constitution.  A search occurs under article I, section 7, when the government disturbs a citizen’s privacy interests that the citizen should be entitled to have safe from government interference without a warrant.  Courts consider the nature and extent of the information the government may obtain through its conduct.  An officer observing something through his or her own senses is not a search under this section, if the officer is in a location he or she is lawfully allowed to be.  Officers may use tools that enhance their natural senses, such as binoculars or flashlights, but equipment that does more than enhance the senses may require a warrant.  Law enforcement needs a warrant to use infrared thermal devices to observe heat patterns in a home or to track a private vehicle with a GPS device.

In a recent case, a defendant challenged his conviction of two counts of felony violation of a domestic violence no-contact order that involved video surveillance evidence.  He had previously pleaded guilty to misdemeanor counts of violation of a domestic violence no-contact order under a previous order.  According to the appeals court’s opinion, a detective initiated an investigation after an investigator with the Prosecuting Attorney’s Office encountered the defendant in the parking lot of his wife’s apartment building.  The detective had surveillance cameras installed on a telephone pole.  In the videos, she saw someone she believed to be the defendant walking toward the defendant’s wife’s apartment.  The police then obtained a search warrant.  When they executed the warrant, they found the defendant standing outside an open window.  They also found his mail and clothes in the bedroom.  He was arrested and charged with residential burglary and two counts of felony violation of a domestic violence order.

The defendant sought to suppress the video surveillance evidence, arguing the police violated his rights under both article I, section 7, and the Fourth Amendment.  He also argued the police were not allowed to install the surveillance cameras on telephone poles.  The trial court found the cameras were directed to public areas and the parking lot, not the defendant’s wife’s apartment.  The court also found the defendant did not have standing to raise the telephone pole issue.  The trial court denied the defendant’s motion to suppress the video evidence.

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