Criminal Law

Washington Conviction Reversed Due to Juror’s “Actual Bias”

December 29, 2021 | by Blair Kim Moeller, PLLC

Washington criminal defendants are guaranteed a trial by an impartial jury under both the state and federal constitutions. The trial court should excuse a potential juror if the performance of their duties as a juror would be prevented or substantially impaired by their views. Actual bias is a basis of a for-cause challenge by either party. Actual bias occurs when the prospective juror’s state of mind that would prevent them from trying the issue impartially without prejudice to the challenging party. RCW 4.44.170. If a juror with actual bias is seated, the error is not harmless and requires a new trial. A defendant recently appealed his murder convictions, arguing the court erred in seating a juror with actual bias.

A young Canadian couple was killed while traveling to Seattle in 1987. Their bodies were discovered in different counties. A DNA profile was developed from DNA retrieved from the woman’s body and clothing. The male victim was excluded as the source of that DNA. According to the appeals court’s opinion, the defendant was identified as a potential source of the DNA profile in 2018 through genealogy matching. The defendant’s DNA was matched to the profile from the female victim’s pants and body after undercover officers collected a coffee cup he discarded.

The state charged the defendant with two counts of first degree aggravated murder. In an individualized inquiry, a potential jury expressed uncertainty she could be fair. She thought the topics and evidence may be difficult for her because of her own traumatic experiences in the past. The defendant moved to dismiss the juror for cause, but the trial court denied the motion. That potential juror was seated on the jury.

Washington Juvenile Drug Possession Adjudication Vacated Under Blake

December 23, 2021 | by Blair Kim Moeller, PLLC

In State v. Blake in 2021, the Washington Supreme Court determined that Washington’s strict liability drug statute violated due process because it “criminalize[d] innocent and passive possession.” This case has had a tremendous impact on Washington drug possession cases. A Washington criminal conviction that is based on an unconstitutional statute is required to be vacated. A number of cases under the previous version of R.C.W. 69.50.4013(1) have been overturned as a result of the Blake decision. Recently, a juvenile appealed his drug possession adjudication under a different statute, arguing it should also be vacated due to the court’s holding in Blake.

The juvenile was found guilty of violation of the Uniform Controlled Substances Act under former R.C.W. 69.50.4014. He appealed, arguing the Washington Supreme Court’s decision in Blake required his adjudication to be vacated. He argued the applicable version of R.C.W. 69.50.4014 was unconstitutional and void based on the reasoning in Blake.

The state argued that Blake did not void the applicable version of R.C.W. 69.50.4014 because that charge carried a lesser punishment than the statute Blake found was unconstitutional. The appeals court rejected the state’s argument, noting the Blake court did not base its decision on the severity of the punishment. The Blake decision was instead based on the statute’s lack of an intent element.

Restoration of Washington Gun Rights After Blake Decision

November 21, 2021 | by Blair Kim Moeller, PLLC

A Washington criminal conviction can have significant and lasting consequences. Convictions may result in greater sentences for subsequent offenses, the loss of firearm rights, and the loss of voting rights. In some circumstances, some rights may be restored. In a recent case, a man who had lost his firearm rights following a felony conviction was denied restoration based on a prior misdemeanor possession conviction.

According to the appeals court’s unpublished opinion, the petitioner was convicted of misdemeanor possession of less than 40 grams of marijuana under former RCW 69.50.401(e), a strict liability offense, in 2003. The following year, he pleaded guilty to felony manufacturing methamphetamine. The judgment and sentence stated the maximum penalty was 10 years and did not list his prior conviction. The petitioner lost the right to use or possess firearms as a result of the 2004 felony conviction.

The petitioner sought restoration of his firearm rights in 2020. The state argued he was not eligible for restoration because the maximum sentence should have been 20 years instead of the state 10 years. The state argued the 2003 conviction automatically triggered the doubling provision of RCW 69.50.408. RCW 69.50.408 allows the doubling of a sentence for a conviction under Chapter 69.50, the Uniform Controlled Substances Act, if the defendant had a prior conviction under Chapter 69.50 or a federal or another state’s law related to narcotics, marijuana, depressants, stimulants, or hallucinogenic drugs.

Constitutionality of Washington Juvenile Community Supervision Revocation Procedure

October 31, 2021 | by Blair Kim Moeller, PLLC

Community supervision and probation are often preferable to confinement, but some people can find it difficult to comply with their times at times. Additionally, the requirements for the state to prove a violation of such terms do not require the same level of proof as would be required for new Washington criminal charges. In a recent case, a juvenile challenged the constitutionality of RCW 13.40.200 because of the burden of proof it requires for violations.

The juvenile offender was 13 years old when she pleaded guilty to fourth degree assault. She was sentenced to 3 days of confinement, 12 months of community supervision, and 16 hours of community service. She violated the community supervision conditions multiple times.

After four violation hearings and 61 days of additional confinement, she contested allegations she had failed to go to school and follow rules and curfew. She moved to challenge the constitutionality of RCW 13.40.200. RCW 13.40.200 sets forth the procedure and punishment for a juvenile offender’s failure to comply with an order for community supervision. She argued section (2) of the statute violates due process because it requires the juvenile to disprove the willfulness of the violation. She also argued section 3 allows for the imposition of confinement based on a preponderance standard until the maximum adult sentence. She argued the state should prove all elements of a willful violation beyond a reasonable doubt once the offender’s confinement exceeds the standard range.

Concurrent DOSA Sentences Do Not Render Washington Defendant Ineligible for Another DOSA

October 22, 2021 | by Blair Kim Moeller, PLLC

In some Washington drug cases, a court may impose alternative sentencing if doing so is in the defendant’s and community’s best interests. Defendants may be eligible for a drug offender sentencing alternative (“DOSA”) if they meet certain conditions under RCW 9.94A.660(1). One of the conditions is that the defendant may not have received a DOSA “more than once in the prior ten years. . .” RCW 9.94A.660(1)(g). If the high end of the standard sentence range for the offense is greater than one year, the court may order prison-based DOSA, in which the defendant serves half of the standard range sentence in prison and the other half in the community with treatment. RCW 9.94A.662(2). The court may revoke the DOSA sentence if the defendant does not comply with its requirements. RCW 9.94A.660(2).

In a recent case, a defendant appealed his sentence after the sentencing court found him ineligible for a DOSA. In 2016, the defendant received separate DOSA sentences resulting from guilty verdicts in two separate trials, but the sentences were made to run concurrently. He completed the DOSA for those charges in June 2020.

On June 17 of the same year, the defendant was arrested following a reported burglary at a store. The police did not find the stolen merchandise in the defendant’s vehicle, but did find less than half a gram of methamphetamine in his pocket.

Washington Juvenile Court Jurisdiction Cannot Be Waived for All Types of Charges

September 14, 2021 | by Blair Kim Moeller, PLLC

Juvenile cases are sometimes transferred to adult criminal court. The requirements regarding a court holding a hearing on the issue of declining jurisdiction are set forth in RCW 13.40.110. An appeals court recently considered whether Washington juvenile court jurisdiction could be waived for any type of case, or if the court’s authority was limited to the types of cases identified in the statute as eligible for a decline hearing.

According to the appeals court’s opinion, a 17-year-old juvenile was charged with two counts of a gross misdemeanor, fourth degree assault. He moved to have the case moved to adult criminal court, partly to have a jury trial and an opportunity to vacate his convictions. He argued a juvenile court may decline jurisdiction over a criminal case if the juvenile intelligently makes an express waiver pursuant to RCW 13.40.140(10). RCW 13.40.140(10) provides that any waiver of a juvenile’s rights must be “express” and “intelligently made.” The state argued that a juvenile court is only permitted to decline jurisdiction in cases in which a decline hearing is required.

The court granted the request and the state requested discretionary review.

Washington Conviction Overturned Due to Insufficiency of Charging Document

August 29, 2021 | by Blair Kim Moeller, PLLC

To convict a defendant of possession of a stolen motor vehicle, the prosecution must show the defendant knowingly possessed the vehicle and that he acted with knowledge it was stolen. When a person is charged with a crime, the charging documents must include all of the essential elements of that offense. A Washington criminal defendant recently challenged his conviction, arguing the charging document failed to give him the required notice of the knowledge element of the offense.

According to the appeals court’s opinion, the defendant was stopped because he was not wearing a helmet. The officer suspected the moped the defendant was driving was stolen and confirmed those suspicions with a review of the VIN.

The defendant was charged with and convicted of possession of a stolen motor vehicle. He appealed, arguing the charge violated his constitutional right to notice because it did not include the knowledge element.

Washington Conviction Reversed Due to Potential Unconscious Bias in Jury Selection

July 29, 2021 | by Blair Kim Moeller, PLLC

A defendant in a Washington criminal case is entitled to a fair and impartial jury pursuant to both the state and federal constitutions. Washington court rules allow parties to strike some prospective jurors without a stated reason through peremptory challenges. A party may not, however, strike a prospective juror for a discriminatory reason. U.S. Supreme Court case law has developed a framework for analyzing whether there has been improper “purposeful discrimination” in the use of a peremptory challenge. This analysis, however, does not protect the defendant from the potential of unconscious bias in the selection of the jury.

Washington adopted a rule to address this issue. General Rule 37 permits a party or even the court itself to object to a peremptory challenge to raise the issue of improper bias. The party who made the challenge must then articulate their reasons for using the challenge. The court then must determine if an objective observer could see race or ethnicity as a factor, considering the totality of the circumstances. If so, the court should deny the peremptory challenge.

A defendant recently appealed his conviction after the trial court allowed the prosecution to strike a juror over the defendant’s objection. According to the appeals court’s opinion, the defendant was charged with first degree kidnapping and second degree assault of his long-term girlfriend, with four firearm enhancements.

Body Cam Footage and the Confrontation Clause in Washington Domestic Violence Case

July 26, 2021 | by Blair Kim Moeller, PLLC

Washington criminal defendants have a right to confront the witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This means a defendant generally has the right to cross-examine witnesses who provide testimonial evidence against the defendant at trial. In cases involving charges related to domestic violence or violation of a no-contact order, victims may not want to testify. In a recent case, a defendant challenged his convictions after body camera footage and a 911 recording were presented at trial.

The mother of defendant’s children called 911 and asked for help, stating “He keeps following me!” There was also a male voice on the recording, saying “Give me the phone.” When police arrived, the children’s mother told them there was a no-contact order. She said the defendant had been pushed her, threatened to kill her, and stole her phone.

The police found the defendant a short distance away. He had a phone in his possession.

Washington Legal Standard for Self-Defense with the Use of Deadly Force

June 30, 2021 | by Blair Kim Moeller, PLLC

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.