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Vancouver Criminal Law Blog


In an important new criminal law decision, The Court of Appeals of Washington reversed a conviction in a vehicular homicide case in State v. Imokawa. The court held that the jury instructions did not make it reasonably clear that the state had to disprove alternate causation of the accident which led to the fatal injury. I was co-counsel on appeal with the trial lawyer who tried the case.



Washington Court Gives Constitutional Privacy Protection to Homeless Man

In an important criminal law decision regarding the right to privacy, the Washington Court of Appeals recently decided that the police could not enter a homeless person's tent/tarp shelter without a warrant. The decision recognizes that under Washington's Constitution, Article I, §7,  a homeless person should have the same rights to privacy in his makeshift shelter that other Washington residents have in their homes or apartments.


The case arose out of the City of Vancouver's attempt to clear out a homeless area by changing the enforcement policies regarding Vancouver's anti-camping ordinance. Police were visiting homeless people and notifying them that they would be subject to arrest and prosecution if they were found camping on public property between 6 AM and 9:45 PM. Police were trying to notify the homeless man in this case about the new policy. In their view, the man was somewhat slow to respond, so the police then lifted the flap of his tent/tarp and saw that he was in possession of methamphetamine.

Washington Supreme Court allows prosecution of 17 year old for Sexting

The Washington State Supreme Court recently filed an important criminal law decision (decided 6-3) which upheld the conviction of an autistic 17 year old who sent an unwanted "selfie" photo of his genitalia to a woman he was apparently trying to impress.

Washington Court frees man based on Double Jeopardy

The Washington Supreme Court recently issued an important criminal law decision which will free a man who has been in prison since 2006, based on the  "bedrock" constitutional principle of double jeopardy.

            Mathew Moi was tried for murder in  2006. The prosecution theory was that he shot the victim. No physical evidence tied him to the gun. He was also charged with illegal possession of the same  firearm the prosecution contended was the murder weapon. His lawyer moved for a separate trial on the gun charge because part of the proof of the firearm charge was that Moi had been convicted, while a juvenile, of a felony robbery. The State opposed severance of the two counts, and suggested that Moi could have a bench trial (non-jury trial) on the firearm charge which would reduce the possibility of the jury being prejudiced by the juvenile robbery conviction. The trial court agreed to this procedure.

            The first trial ended in a hung jury on the homicide count, but the trial judge found Moi not guilty of the illegal possession of the firearm, which the prosecution contended was the murder weapon.

Washington Court "clarifies" Double Jeopardy in criminal law

The Washington Supreme Court recently issued a decision in the area of criminal law which tried to clarify when prosecutors can refile charges after a jury has reached a verdict on a lesser included offense. State v. Glasmann, (May 7, 2015)

The defendant was on trial for fist degree assault, first degree attempted robbery, and first degree kidnapping. The jury reached agreement on the kidnapping charge, but apparently could not reach agreement on the  first degree assault and  first degree robbery charges. It convicted the defendant of the lesser charges of assault in the second degree and second degree attempted robbery.

The defendant filed a personal restraint petition alleging misconduct by the prosecutor in closing argument. The court granted the petition and vacated his convictions for the assault, robbery, and kidnapping. The prosecutor then attempted to retry the defendant on the greater charges on which the jury had apparently been unable to agree. Glasmann argued that this was barred by the constitutional prohibition against double jeopardy.

The jurrors were given instructions that if after a "full and careful consideration" of the greater charge they could not reach agreement, they should move onto the lesser included charges. The majority of the Washington Supreme Court concluded that by leaving the verdict forms for the greater charges blank, the jury was simply following the instructions it had been given to move on to the lesser charges and necessarily was deadlocked. It chose not to follow a decision by the Federal 9th Circuit of the Court of Appeals that would require a more concrete showing of "genuine deadlock" by the jury before a mistrial (Hung Jury) could be declared.

Washington Court Upholds Right to Privacy in the Home

On March 3, 2015 Division III of the Court of Appeals of Washington issued its decision in State v. Budd.  This is a significant decision regarding the right to privacy in a person's home.

The decision opens with a exchange between Senator Tallmadge and John Ehrlichman, one of Nixon's henchmen, during the Watergate era. The topic is the protection of even the humblest dwelling from invasion by minions of the Crown.

 Budd was being investigated by the police for possession of child pornography. Lacking probable cause for a warrant, the  police decided to employ an investigatory tactic know as  "knock and talk". They confronted Budd outside his home with their suspicions.  They asked for his consent to enter and seize his computer. The investigating officer said that if he refused, she would and could obtain a warrant to search the house. Budd apparently did not want his girlfriend to see any of the images on his computer. When the police agreed not to do that, he agreed to allow them to enter.

Prosecutorial misconduct causes reversal of murder conviction

in  an important case involving prosecutorial misconduct during closing argument, the Washington Supreme Court  reversed a first degree murder conviction in State v. Walker. The decision was announced on January 22, 2015, and reaffirms the criminal law requirement of a fair jury trial.

The prosecutor had repeatedly expressed his personal opinion about the defendant's guilt, partly through the argument itself, and partly through Power Point slides. One of these depicted the defendant's booking photo with the words "GUILTY BEYOND A REASONABLE DOUBT" superimposed in very large boldface red letters. Of the 250 slides used in the Power Point presentation, over 100 of them were headed by the caption "Defendant Walker guilty of premeditated murder". A number of these involved altered versions of exhibits admitted during the trial.  The  majority of the court found over 100 of them to improperly express the personal opinion of the prosecutor that the defendant was guilty, which Washington courts have repeatedly held denies the accused person  a fair trial.The court held that other slides were improper because of racial slurs or other inflammatory text or positioning next to photos of the victim of the crime.

Washington Supreme Court Clarifies Criminal Law Burden of Proof

The Washington Supreme Court  decided State v. W.R. on October 30, 2014 and clarified the burden of proof in rape cases. The juvenile defendant  (W.R.) was charged with second degree rape. In a bench trial, since jury trials are not allowed in juvenile  court under Washington criminal law, the trial judge found W.R guilty of second degree rape. The defense had argued that the sexual intercourse between W. R. and another juvenile had been consensual. The trial court ruled that the defendant had not proven consent and that he had the burden to do so. 

Under current Washington criminal law, rape in the second degree requires the prosecution to prove that the intercourse was by means of " forcible compulsion." Rape in the third degree, a lesser offense, requires the prosecution to prove that the woman did not consent to intercourse. Many previous Washington decisions have struggled with trying to define the line between these two crimes, in cases with often disputed factual scenarios.

Previous Washington decisions had placed the burden on the defense to prove that  the woman had consented. In the  State v. W. R. decision, the court ruled that placing the burden on the defense to prove consent in a forcible compulsion rape prosecution was a violation of existing United States Supreme Court precedent allocating the burden of proof in a criminal law case.  This was because in order to prove "forcible compulsion" the state would have to negate evidence of consent.  Thus to meet its burden, the prosecution has  over come and  disprove evidence of consent. As the court observed, "there can be no forcible compulsion when the victim consents, as there is no resistance to overcome." the court explicitly overruled the earlier cases which had placed on the defense the burden of proving consent to intercourse.

Washington Supreme Court Excludes Past Domestic Violence Evidence


The Washington State Supreme Court decided State v. Gunderson on November 20, 2014. Gunderson was charged with violating a no contact order. The charge was elevated to a felony because Gunderson had allegedly assaulted either his ex-girlfriend or her mother during what the mother described as a "scuffle" when initially reporting the matter to the police.

The ex-girlfriend had not made any statement to the police or to the prosecution before trial. At Gunderson's trial, she testified there had been no assault on her, nor on her mother. She had, in fact, suffered no injury. The prosecution then asked the court to allow it to attack the ex-girlfriend's credibility by offering evidence that Gunderson had previously been convicted of domestic violence on two previous occasions. The trial court allowed this, and Gunderson was convicted.