Criminal Law

Washington Conviction Overturned Due to Insufficiency of Charging Document

August 29, 2021 | by Blair & Kim, 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, 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, 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, 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.

Washington Juvenile Court Cannot Issue No-Contact Order upon Conviction

June 30, 2021 | by Blair & Kim, PLLC

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.

Washington Conviction Overturned Because Court Denied Second Degree Offense Instruction

May 14, 2021 | by Blair & Kim, PLLC

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.

Washington Convictions for Violation of Multiple No Contact Orders Based on a Single Act

March 4, 2021 | by Blair & Kim, PLLC

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.

Washington Appeals Court Reverses Conviction Due to Improper Identification Testimony

February 10, 2021 | by Blair & Kim, PLLC

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.

Washington Appeals Court Reverses Conviction For Lack of Unanimous Jury Verdict

October 14, 2020 | by Blair & Kim, PLLC

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.

Washington Appeals Court Vacates Conviction Based on Search of Sleeping Man

September 8, 2020 | by Blair & Kim, PLLC

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.