Criminal Law

Washington Appeals Court Reverses Conviction Due to Race-Based Prosecutorial Misconduct

September 29, 2022 | by Blair & Kim, PLLC

A Washington appeals court recently reversed a conviction due to prosecutorial misconduct, despite finding there was sufficient evidence to support the conviction. The defendant was convicted of possession of a controlled substance with intent to deliver. On appeal, he argued that the prosecutor had engaged in race-based misconduct by using the phrase “Mexican ounce” to describe the packaging of the heroin for which he had been charged. He argued the prosecutor used this language to tie him to the drugs and to use “stereotypes of Mexican drug-dealing and dishonesty” against him.

Prosecutorial misconduct occurs when a prosecutor uses arguments to arouse the jury’s passions or prejudices. Raising race when it is not relevant can affect the jurors’ impartiality and appeal to their prejudice, resulting in a conviction that is not based on the evidence.

The defendant did not object to this language at trial. Generally, when a defendant first raises prosecutorial misconduct on appeal, they must show improper conduct, prejudice, and that a jury instruction could not have cured the prejudice. Washington treats race-based misconduct differently from other types of prosecutorial misconduct, however. The court instead considers if the prosecutor “flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence.” State v. Zamora (quoting State v. Monday). The test is whether an objective observer could view the comments as an appeal to potential bias, prejudice, or stereotypes. The court should consider the context of the comments. The conviction must be reversed if the appeals court finds the prosecutor flagrantly or apparently intentionally appealed to racial or ethnic prejudice.

Washington Juvenile Deferred Disposition and Loss of Driving and Firearms Rights

September 25, 2022 | by Blair & Kim, PLLC

In a Washington deferred disposition in a juvenile case, the juvenile stipulates to the admissibility of the facts in the police report, acknowledges the report will be entered a used to support a finding of guilt and impose disposition if they do not comply with the terms of supervision, waive the rights to speedy disposition and to call and confront witnesses, and acknowledge the direct consequences of a finding of guilty and of a disposition, if entered. The court then defers entry of an order of disposition and places the juvenile on community supervision, with any conditions deemed appropriate by the court. At the end of the period of community supervision, the court determines if the juvenile is entitled to dismissal based on statutory requirements. If so, the conviction is vacated and the court dismisses the case with prejudice. If the court vacates the conviction, and the juvenile is at least 18 years old and has paid the full amount of restitution owed to the individual victim, the court also orders the case to be sealed. If the juvenile is not yet 18, the court will schedule an administrative sealing hearing within 30 days of the juvenile’s 18^th birthday. If the juvenile is not entitled to dismissal, the court revokes the deferred disposition and enters an order of disposition. RCW 13.40.127.

A juvenile who entered a deferred disposition for attempting to elude a pursuing police vehicle recently challenged the driver’s license suspension and firearms right revocation imposed upon him. Pursuant to RCW 46.20.285, the department of licensing revokes the license or permit of a person convicted of attempting to elude a police vehicle. A juvenile’s right to possess a firearm is revoked if they are adjudicated guilty of any felony under RCW 9.41.040, including attempting to elude. Case law has held that a juvenile is considered to be convicted when they enter into a deferred disposition. A juvenile in deferred disposition who meets the requirements will have their license suspended or firearms rights revoked until the adjudication is vacated.

Washington counties may create alternative therapeutic court programs pursuant to RCW 2.30.030. Therapeutic court programs allow juveniles to have their case dismissed after completing the program. The case is removed from prosecution and the juvenile is not adjudicated guilty. Because they are not adjudicated guilty, juveniles in therapeutic court programs do not face driver’s license suspension or firearms rights revocation.

Use of Recording without All Parties’ Consent in Washington Criminal Case

August 25, 2022 | by Blair & Kim, PLLC

Washington’s privacy act generally prohibits recordings of communications obtained without consent of all parties from being admitted as evidence at trial. RCW 9.73.030. In some circumstances, however, they may be admissible. A law enforcement officer can intercept, record, or disclose a conversation with the consent of one party and authorization of a judge. The judge must approve the application for authorization if there is probable cause the other party committed, is committing, or is about to commit a felony. RCW 9.73.090(2). The requirements for the application are set forth in RCW 9.73.130, and if the application is not in compliance with those requirements, the order is unlawful and the recording cannot be admitted into evidence. A defendant recently challenged admission of a video of him and his brothers discussing the crime.

According to the appeals court’s unpublished opinion, five young men in masks and dark clothes killed two people and shot three others in an encampment for people without housing. One of the victims identified the person who shot her as a man called “Juice.”

A man called “Lucky” contacted the police the following day and said his 17-year-old nephew, the defendant, had admitted to the shooting. Lucky and a relative went to the police department for an interview. They told the detective the defendant and his brothers owned three guns. Lucky agreed to try to record a conversation with the defendant.

Jury Instructions for Lesser-Included Offenses in Washington

August 14, 2022 | by Blair & Kim, PLLC

Washington criminal defendants have the right for the jury to be instructed on applicable lesser-included crimes if each of the elements of the lesser offense is a necessary element of the charged offense and the evidence supports an inference the lesser crime was committed instead of the greater offense. There must also be affirmative evidence of the defendant’s theory.

A defendant recently challenged her conviction because the trial court denied her request to instruct the jury on lesser-included offenses. According to the appeals court’s unpublished opinion, the defendant told another sophomore student that a senior, identified by the court as “RV,” had inappropriately touched her and other girls. She had complained to the administration, but did not receive a response. She and the other student, identified as “JC” developed a plan to “take out” or “kill” RV, according to statements she gave the police. She said she was to convince RV to meet her at a market across from the school and JC would attack him.

The state presented evidence of messages associated with the defendant’s social media account convincing RV to her. JC went behind the market with a knife and a red t-shirt over his face. RV and the defendant went inside the market to buy lunch. The defendant testified she only intended to get lunch and return to school. As they were leaving the market, other students were “talkin’ about a guy in the field with a red mask.” They went behind the store and RV saw someone in a red mask stand up and point at him. He decided to go back to school. JC and the defendant spoke, and then both went back to school, too.

Washington Harassment and True Threats

July 10, 2022 | by Blair & Kim, PLLC

To convict a defendant of Washington harassment, the state must show that the defendant knowingly threatened to cause bodily injury, physically damage someone else’s property, or physically confine or restrain another person, without the authority of law, and placed the threatened person in reasonable fear that they would carry out the threat. Harassment is a class C felony if the threat was to kill the threatened person or someone else. RCW 9A.46.020. Since it criminalizes a pure form of speech, the harassment statute implicates the First Amendment. Washington courts therefore interpret it as criminalizing only “true threats.”

A defendant recently challenged his felony harassment conviction, arguing the state had not produced evidence of a true threat. A man was renting a room in defendant’s home from April to October of 2020. According to the appeals court’s opinion, the defendant yelled at the renter and called him names during a conflict that summer. He also would throw things in his bedroom. The renter heard the defendant having a “tantrum” in the garage on August 23. The defendant told the renter his boxes should be taken out of the garage. The renter said he had misunderstood a text message about when he should remove the boxes. The defendant pointed at him and said he had a gun and would shoot the renter in the head. After the defendant walked away, the renter went back to his own room and called the police.

The defendant was charged and ultimately convicted of one count of felony harassment with a domestic violence enhancement.

Washington Court Denies DOSA Sentence for Multiple Violations of No Contact Order

June 27, 2022 | by Blair & Kim, PLLC

Washington’s Drug Offender Sentencing Alternative (“DOSA”) program provides substance use disorder treatment and community treatment to people with a substance use disorder who have committed certain crimes. A DOSA sentence reduces or eliminates the time a person must spend in jail or prison if they complete the treatment and comply with the supervision requirements. A defendant recently challenged a court’s denial of his request of a DOSA sentence.

He was charged with three felony counts of violating a court order, with the state alleging he knowingly violated a no contact order on three occasions and that he had at least two prior convictions for violating a court order.

At sentencing, the defendant asked for a prison-based Drug Offender Sentencing Alternative (“DOSA”), pursuant to RCW 9.94A.660, pointing to testimony from the alleged victim in which she responded “yes” to a question asking if the defendant used methamphetamine. The court described this testimony as inadmissible and prejudicial. The trial court noted that the defendant was facing three cases in a different county and had two prior convictions for violating court orders.

Washington Felony Theft Conviction for Taking Cell Phone

June 14, 2022 | by Blair & Kim, PLLC

Washington domestic violence cases often involve allegations the defendant took or damaged the alleged victim’s phone. Taking a phone in such circumstances may result in charges of interfering with reporting domestic violence, but it can also result in theft charges. Given the ever-increasing price of mobile phones, those theft charges can be very serious. In a recent unpublished case, a defendant challenged his second degree theft conviction, arguing the state had failed to prove the value of the phone.

After their romantic relationship ended, the defendant’s ex-girlfriend obtained a no-contact order against him in July 2020.

According to the appeals court’s opinion, the defendant saw her in her truck in a grocery store parking lot, opened her door, threw a drink at her, and struck her multiple times. He also took her phone and the phone of her male friend. A witness called 911.

Double Jeopardy and Washington Conspiracy Charges

May 30, 2022 | by Blair & Kim, PLLC

The Fifth Amendment of the U.S. Constitution protects individuals from being put in jeopardy more than once for the same offense. The Washington State Constitution also protects Washington criminal defendants from double jeopardy. Many people think of the double jeopardy doctrine as preventing a person from being charged with the same offense again after being acquitted, but it also provides protections in other circumstances. Double jeopardy protections prevent a defendant from being charged with the same offense again after being acquitted or convicted and from being punished for the same offense more than once. In a recent unpublished case, a defendant challenged her convictions on three counts of conspiracy to commit murder, arguing that the multiple conspiracy charges violated double jeopardy.

According to the appeals Court’s opinion, the defendant’s husband left her in 2019 after more than 25 years of marriage. He moved to his mother’s property and started dating another woman. A few months later that woman moved in with him.

According to the opinion, the defendant told a friend she wanted to kill her husband, his mother, and his new girlfriend. She told the friend she had been planning to do so. She said she would like for someone to make the murders appear to be a home invasion, but expressed that she would do it herself if necessary.

DNA Collection in Washington Juvenile Deferred Disposition Cases

May 23, 2022 | by Blair & Kim, PLLC

Pursuant to RCW 43.43.754, individuals convicted of certain crimes and juvenile offenses in Washington must give a DNA sample. Two juveniles recently challenged separate court orders requiring them to give DNA samples after they were granted deferred disposition. Each of the juveniles was charged with theft of a motor vehicle arising from separate incidents, with one of the juveniles having several additional charges. They each appealed and their cases were consolidated before the Washington Supreme Court.

In the lead opinion, the Washington Supreme Court noted that RCW 43.43.754 fails to define the meaning of “conviction.” The court also pointed out that the meaning of “conviction” is not clear in statutes involving juveniles. In such circumstances, the court must consider the context and purposes of the statute in interpreting what is meant by “conviction.”

The court first considered other relevant statutes. The court noted that juvenile adjudications finding guilt are considered convictions under the Sentencing Reform Act. RCW 9.94A.030(9). The court also concluded that standard and law dictionary definitions supported the definition in the Sentencing Reform Act.

Factual Basis for a Washington Guilty Plea

April 30, 2022 | by Blair & Kim, PLLC

A guilty plea by a Washington criminal defendant must be knowing, intelligent, and voluntary. A plea can only be voluntary if the defendant understands both the nature of the charges against him or her and the consequences of pleading guilty. The trial court must be “satisfied that there is a factual basis for the plea.” CrR 4.2.

A defendant recently challenged his guilty plea, arguing there was not a sufficient factual basis for the sentencing enhancement. According to the appeals court’s unpublished opinion, the defendant pleaded guilty to first degree manslaughter with a deadly weapon sentencing enhancement. The defendant gave a brief statement of guilt stating he “acted recklessly and caused the death of [the victim],” with no mention of a deadly weapon. Although there was a box on the form to indicate the defendant did not make a statement and had agreed the court could review other documents for the factual basis, it was not checked.

The trial court accepted the plea. The defendant was sentenced to 158 months, increased to 182 months with the sentencing enhancement.