Criminal Law

Excited Utterances May Be Admissible in Washington Even If Partly Untrue

December 7, 2017 | by Blair & Kim, PLLC

Many people are aware of the general rule that hearsay is inadmissible. Washington criminal defense attorneys know that a court may admit hearsay evidence if it meets one of a number of exceptions to that general rule. A Washington appeals court recently reviewed a case involving the excited utterance exception to the hearsay rule.

The defendant’s girlfriend had been drinking during the evening of the incident. She left the home for a while after an argument, but she subsequently returned. About 45 minutes later, she called her 16-year-old daughter. According to the daughter, the woman was crying and hysterical and spoke at a high volume. The daughter testified she had trouble understanding her mother. The woman described an assault and told her daughter she had been shot.

The girl gave the phone to her father. The woman’s ex-husband testified that she was hysterical, crying, and very scared. She described an assault and told him the defendant had shot her. The ex-husband called the police.

Washington Supreme Court Rules on State Delay in Disclosing Toxicology Witness

November 22, 2017 | by Blair & Kim, PLLC

Washington DUI defense attorneys often have to fight vigorously to ensure they get information from the State. In DUI cases, the State sometimes fails to name the toxicologist who will testify until very close to the trial. In one particularly egregious case, the prosecution provided a list of potential witnesses and waited until the morning of the trial to identify the actual witness. We discussed this case following the Court of Appeals decision, and the Washington Supreme Court has recently reviewed it.

The defendant was charged with driving under the influence. Five months before the trial, the State disclosed a list of nine toxicologists, indicating one of them would testify. Two weeks before trial, the defendant filed a supplemental discovery request, seeking identification of the testifying witness. Three days before trial, the defendant moved to dismiss or suppress the testimony. On the day before the trial, the State narrowed the list to three names. It finally identified which toxicologist would testify on the morning of the trial.

The defendant moved to suppress the testimony based on the late disclosure. The trial court denied the motion, finding no actual prejudice to the defense. The court also noted that the practice of providing a list rather than disclosing a specific name was caused by underfunding of crime labs rather than mismanagement.

Independent Basis for Washington Officer Requesting I.D. for Suspicion of Violating Protection Order

October 27, 2017 | by Blair & Kim, PLLC

The Washington Constitution protects people from unlawful searches and seizures. Article 1, section 7 has been interpreted by Washington courts to prohibit police from requesting identification of a passenger unless there is an independent basis for the request. An independent basis exists if the officer can identify specific and articulable facts that, when taken with rational inferences, justify the request. Washington criminal defense attorneys know that an unlawful search or seizure can occur in any kind of case, including a violation of a protection order.

In a recent case, a Washington appeals court considered whether an officer had an independent basis to ask the identity of a passenger when the driver was protected by a no-contact order. The defendant’s arrest arose from an incident in which an officer stopped a vehicle for expired registration and failure to transfer title. A man got out of the vehicle before the officer approached. The officer learned that the driver of the vehicle had several warrants. He also learned she was the protected party in a domestic violence no-contact order. The officer determined the description of the restrained party matched the passenger who had gotten out of the vehicle. He found that the passenger was in the portable outdoor restroom of a nearby gas station. The door to the restroom indicated it was unlocked and unoccupied. He knocked and opened the door, finding the passenger inside.

The passenger gave the officer a name and date of birth that did not match the restrained party. They then returned to the patrol vehicle, where the officer saw pictures of the man bearing the name given and the restrained party. The officer determined that the passenger was the restrained party and arrested him for a violation of the no-contact order.

Jury Access to Inadmissible Evidence Results in New Trial for Washington Criminal Defendant

October 6, 2017 | by Blair & Kim, PLLC

A jury must base its decision on the evidence before the court and may not consider evidence outside the record. While courts do their best to ensure that juries are properly instructed and not exposed to outside information, jurors still sometimes consider extrinsic information in robbery and other theft cases. When this happens, a Washington robbery defense attorney may seek a new trial for his or her client.

Such was the case recently, when a jury was exposed to a video that had not been admitted into evidence at trial. The defendant was charged with second-degree robbery of a restaurant. Police apprehended him at the end of an alley about five blocks away shortly after the robbery. There were shoe prints in the alley matching the defendant’s shoes. He had a roll of pennies on him and just a few dollars more than what had been taken. The robber’s shirt was found in a garbage can along the alley. The employee, however, did not think the defendant was the robber.

There were three videos from inside the store and another that captured the parking lot. The outside video also showed the robber walking out of the building in the general direction of the alley. All four videos were put onto a DVD admitted as a prosecution exhibit. However, just the videos inside the store were admitted at trial. The prosecution did not have a witness to establish a foundation for the exterior video, so it was withdrawn after the defense objected. The existence of the exterior video came out at trial when the defense asked an officer about not having watched it.

Sentencing Enhancement for Proximity to School Bus Stop in Washington Drug Case

September 7, 2017 | by Blair & Kim, PLLC

Drug possession, manufacture, or sale that occurs in certain public places carries enhanced penalties under Washington law. Prison time or fines may be as much as double as what is otherwise allowed. Under RCW 69.50.435, locations that can result in sentencing enhancements include schools, school buses, public parks, certain public housing projects, public transit vehicles and public transit vehicle stop shelters, and certain civic centers and the surrounding areas. Seattle drug crime attorneys understand the importance of location in drug cases. Additionally, the statute allows for an enhancement if the offense occurs within a specified distance from school grounds or a school bus route stop.

A defendant recently challenged a jury’s verdict related to an enhancement. He argued the state had not sufficiently proved that the location fell within the statutory definition for the enhancement.

A police officer found methamphetamine and paraphernalia in the defendant’s vehicle following a routine traffic stop. The defendant was charged with possession with intent to deliver within 1,000 feet of a school bus route stop. A school district employee testified a school bus route stop was located within 1,000 feet from the location where the officer first saw the defendant’s vehicle. He also testified that a school bus carrying preschool students used that stop.

Washington Supreme Court Allows Random Urinalysis of DUI Defendant on Probation

August 11, 2017 | by Blair & Kim, PLLC

Article I, section 7, of the Washington Constitution provides that “No person shall be disturbed in his private affairs, or his home invaded, without authority of law.” Washington criminal defense attorneys know that the privacy protections of section 7 provide greater coverage than the Fourth Amendment of the U.S. Constitution in some areas.

In a recent case, the Washington Supreme Court considered whether section 7 prohibits a requirement of random urinalysis of individuals on probation for a misdemeanor DUI offense. The defendant in this case pleaded guilty to a gross misdemeanor DUI offense. The trial court imposed a partially suspended sentence, with a condition that she not consume alcohol, marijuana, or nonprescribed drugs. The court also ordered that she submit to random urinalysis drug testing to monitor her compliance with that condition.

The defendant appealed on the grounds that the random urinalysis condition violated her privacy rights under the Fourth Amendment to the U.S. Constitution as well as article I, section 7 of the Washington Constitution. She argued that a warrantless search of an individual on probation for a misdemeanor “must be supported by a well-founded suspicion” that she violated one of the conditions. The court found in favor of the defendant, vacated the sentence, and remanded.

Paraphernalia Possession Not Sufficient to Establish Probable Cause for Intent to Use in Washington

July 14, 2017 | by Blair & Kim, PLLC

Probable cause is required for a warrantless arrest. To have probable cause, the arresting officer must be aware of facts or circumstances that are based on reasonably trustworthy information that is sufficient to cause a reasonable officer to believe a crime was committed. If the arresting officer did not have probable cause for the warrantless arrest, evidence discovered in a search incident to that arrest should be suppressed.

A Washington appeals court recently considered whether possession of a pipe known by the officer to be of a type commonly used to smoke methamphetamine was sufficient to create probable cause. Two deputies responded to a call from a drugstore that a man was inside the store stuffing items in his jacket. One of the deputies detained the defendant on suspicion of shoplifting, although he did not have any unpaid merchandise with him. When the deputy frisked the defendant for weapons, he felt something he identified as being the shape of a methamphetamine pipe. He removed the pipe from the defendant’s pocket. The defendant was arrested, and, during the search incident to the arrest, the deputy found a bag of methamphetamine on the defendant.

The defendant was charged with possession of methamphetamine. He moved to suppress. He was ultimately convicted as charged in a bench trial. The defendant appealed, arguing the deputies did not have probable cause to arrest him.

Washington Court Finds Traffic Stop Constitutional When Defendant Crossed Fog Line

July 1, 2017 | by Blair & Kim, PLLC

Individuals are protected from unreasonable seizures by both the U.S. and Washington Constitutions. Warrantless seizures are unreasonable unless an exception applies, and it is the state that must establish that an exception exists. A traffic stop is considered a seizure. For a warrantless traffic stop to be constitutional, there must be a reasonable articulable suspicion of criminal activity or a traffic infraction. The scope of the stop must be reasonably limited.

A Washington appeals court recently considered whether the state had a reasonable articulable suspicion when it was undisputed that the defendant had crossed the fog line for about 200 feet. A state patrol trooper was driving behind the defendant and observed her drive two wheels of her vehicle over the fog line for about 200 feet. The trooper pulled the defendant over. She submitted to sobriety tests, and the trooper arrested her for driving under the influence after observing clues of intoxication.

The defendant moved to suppress the evidence from the stop, and she moved for dismissal, arguing that the trooper did not have a reasonable suspicion to justify the stop. The state argued that the defendant committed an infraction when she drove on the shoulder.

Alternative Means and Unanimous Jury Verdicts in Washington

June 8, 2017 | by Blair & Kim, PLLC

Domestic violence violation of a protection order is generally a gross misdemeanor under Washington law, but it can be a class C felony if a violation of the order is also an assault or if the defendant has at least two prior convictions for violating a protection order. RCW 26.50.110. The Washington Supreme Court considered whether a jury has to reach a unanimous decision as to which of these alternatives forms the basis of the verdict in a recent case.

At the time of the incident, there was a no-contact order prohibiting the defendant from contacting his former partner. When the defendant’s former partner learned that he was at a nearby bus, she went there to address some items she had to return to him. She testified that the defendant got angry and struck her twice. She then ran to a gas station, and the defendant followed her. The store clerk testified that the defendant followed the woman around the store for several minutes. The defendant left the store when the clerk called the police.

The jury was instructed that there were five elements that must be proved beyond a reasonable doubt. One of those elements was that either the defendant’s conduct was an assault, or the defendant had been convicted of violating a court order twice previously. The court instructed that these were alternative elements, and the jury did not have to be unanimous as to which of the two alternatives had been proved, as long as each juror found that one of the alternatives was proved. The defendant did not object to the instruction or to the prosecutor’s discussion of the instruction in the closing argument.

Washington Appeals Court Finds No Unlawful Seizure in Drug Possession Case

May 12, 2017 | by Blair & Kim, PLLC

Drug possession cases hinge on evidence of the drugs themselves. Under the exclusionary rule, if drug evidence resulted from an unlawful search or seizure, it must be excluded. It is therefore common in drug cases for the defendant to move for the evidence to be suppressed on the ground it resulted from an unlawful search or seizure. In a recent unpublished case, a Washington appeals court considered whether evidence of drugs in a vehicle should have been suppressed.

The defendant pulled his vehicle over to the side of the road after a police sergeant pulled behind him. When the sergeant turned around and drove back toward him, the defendant moved forward, passing the sergeant. The sergeant turned around again. The defendant again pulled over and put on his flashers. The sergeant pulled over behind him.

The defendant told the sergeant he thought he had a flat, but the sergeant did not think the tire looked flat. The sergeant then asked the defendant if he had a driver’s license, and the defendant showed him a Colorado license. The sergeant thought the defendant seemed unsure and nervous when asked if the license was valid, so he asked if it was suspended. The defendant said it could be suspended because of unpaid child support. A dispatcher confirmed that it was suspended in Washington and Colorado.