Articles Posted in Criminal Law

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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Under both the Washington and U.S. Constitutions, warrantless seizures are generally prohibited.  Police may, however, briefly stop and question a person if the officer has a well-founded suspicion the person was connected to actual or potential criminal activity.  The suspicion must be based on objective facts.  This type of stop is called an investigative stop or a Terry stop.  In a recent case, a man challenged a conviction, arguing he had been placed under custodial arrest without probable cause and not held for a Terry stop.

A store employee called 911 when she saw a man in the store she thought had previously stolen video equipment.  She described the man and said she had not seen him steal anything that day, but there was video of him stealing previously.  She told the 911 operator the direction he was riding his bike after he left the store.

A police officer found the defendant, who matched most of the description and was riding his bike in the direction the employee stated.  The officer told the defendant about the 911 call.  The defendant denied being involved in a theft.  The officer told him he could not leave and handcuffed him.  The officer also gave him his Miranda warning.

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The Fifth Amendment of the U.S. Constitution protects individuals from being compelled to incriminate themselves.  Government agents must inform individuals in their custody of the rights to remain silent and to have counsel, known as the Miranda warning. If the government fails to give a required Miranda warning, any incriminating statements the individual makes cannot be used against him in a criminal case.  A recent Washington Supreme Court case examined when an individual held at a border crossing is “in custody” for purposes of Miranda requirements.

As the defendant and his friends were crossing the border to return from a music festival in Canada, they were directed to a secondary inspection area by the border agents.  An agent told them to leave their things in the van and wait in the lobby at the secondary area.  The door to the lobby was locked, so it was not accessible to the public or other travelers. The individuals in the lobby had to ask for permission and be patted down before using the restroom or getting water.  The agents found narcotics on two of the other men who were with the defendant and took them to detention cells.

The defendant was kept in the locked lobby for five hours.  The agents found paraphernalia and personal items containing drugs in the van.  The defendant and his friend were the only travelers in the lobby.  The agents asked the men who owned each of the items and the defendant admitting owning the backpack that had small amounts of heroin and LSD in it.

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Police officers may engage in social interactions with individuals.  Some actions or activities, however, can transform the social interaction into a seizure.  Under Washington criminal law, an officer must have reasonable suspicion to detain an individual and probable cause to arrest him.  In a recent case, the state challenged the dismissal of its case after the trial court found the detention and arrest had been unlawful and suppressed the evidence found in a search.

According to the appeals court opinion, a deputy saw a man and woman sitting on a public sidewalk next to a restaurant at about midnight.  There was a “No Trespassing” sign in the restaurant window, but other businesses in the strip mall were still open. When he approached, he asked the pair what they were doing and referenced the sign.  The man, who was the defendant in this case, told the deputy they were charging a cell phone.  The deputy saw a cord plugged into an outlet outside the building.  The deputy asked the defendant’s name.  The defendant gave him a name, but the dispatcher found no record of that name.  The deputy accused the defendant of lying, and the defendant gave the deputy his real name and admitted there was an arrest warrant out for him.  The deputy could not arrest the defendant on the warrant because it was from another jurisdiction.  He instead arrested him for providing false information to a police officer and trespass.

The deputy found methamphetamine and cocaine in the defendant’s pockets when he searched him following the arrest.  The defendant was charged with possessing a controlled substance, but not with trespass or providing false information.

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