Seattle Criminal Attorney | Confessions – Witnesses
Another week (or so) and another set of published opinions from the Washington Supreme Court and Court of Appeals, although technically that isn’t true. There is officially nothing new to report from the Supreme Court this week – guess they took one off. But there were some interesting case decisions from the lower courts, though these typically tend to follow and further clarify previously understood case law. If you are a Seattle criminal attorney you have to keep reading, though. You never know when you are going to learn something new.
Seattle Criminal Defense Attorney | Confessions and Miranda
Our first case is State v. Elkins, and is out of Division 1 of the Court of Appeals. Read on to learn more.
Facts –
Elkins was driving in late 2006 when she got into an altercation with another driver, Hill. The two drivers exchanged heated words and eventually took the argument into the parking lot of a supermarket, where the parties got out of their cars and began arguing face to face. After a bit of time, Elkins decided to throw a Crown Royal bottle at Hill and beat him up. Elkin’s son joined into the may lieu, eventually breaking the bottle over Hill’s head. After that, Elkins and her son left the grocery store parking lot.
The police soon caught up with her and after they turned on their emergency lights she took off and tried to outrun them. While the chase was going on Elkins clipped the front bumper of a police car. Eventually Elkins lost control of her car and crashed. When she was caught the officers smelled an odor of alcohol and noticed she was slurring her words.
On the way to the station the cops turned on the in-car camera and began recording. Elkins started talking. The cops read her Miranda and she kept on talking.
At the station the officer read Elkins the standard implied consent warnings. Elkins refused to take a breath test.
Elkins was charged with attempting to elude a police vehicle, DUI, second degree assault with a deadly weapon, third degree assault, felony hit and run, and bail jumping. She was found guilty on all counts.
Issue –
(1) Were Elkins’ statements admissible?
(2) Was the in-car video recording admissible?
(3) Where the implied consent warnings adequate?
(4) Did the court properly exercise its discretion when it refused to grant a mitigating sentence on the hit and run conviction?
Analysis –
Admissibility of Statements and Miranda
At the 3.5 hearing to suppress her statements, an officer testified that he provided Elkins with the Miranda warnings. But at trial each of the officers testified that the other read Elkins her rights (which implies that it is possible that no one did). The Fifth Amendment of the United States Constitution against self-incrimination requires that criminal suspects be given warnings that the statements they provide can and will be used against them later. Without a Miranda warning, a suspect’s admissions are inadmissible.
In this case, the court won’t even take this issue up because it wasn’t preserved for appeal at the motions hearing or at trial. If no motion is made at trial then the issue cannot be first brought up to the Court of Appeals (at least in this instance). Additionally, counsel stipulated at the 3.5 hearing that he was not disputing whether or not Miranda was given but that the statements Elkins made after the warnings were not voluntary.
With regard to the in-car statements, the fact that the officer responded when Elkins made a comment about her ethnicity is not enough to rule the subsequent statements inadmissible. By that time her rights had been read, and Elkins has the ability to waive those rights and speak. A confession is voluntary if, after being advised of their rights, a defendant knowingly, voluntarily, and intelligently waives those rights. The test is one of the totality of the circumstances. In this case, it appears as though Elkins validly waived her rights. There is nothing that indicates that Elkins either invoked her right to silence or requested the presence of counsel.
Video Recording and Washington State’s Privacy Act
Washington’s privacy act prohibits the recording of individuals without everyone’s consent. There is an exception for emergency personnel, including police, in certain circumstances. People that are arrested may be recorded so long as they are advised that they are being recorded. In this case, the officer didn’t immediately tell Elkins that the in-car camera had been activated. It was only after she started making incriminating statements that he told her of the camera. There is no record of Miranda warnings on the recording. The state argues the officers didn’t have to read Miranda warnings, the defense did (under separate subsections of RCW 9.73.090.
The court resolved this issue by finding the error harmless. The court points out that the Washington privacy act is a statutory, not a Constitutional, protection, affording only a harmless error analysis. In this case, there was substantial evidence outside of the in-car recording that was used against Elkins. The exclusion of the in-car recording would not have affected the trial either way.
Seattle DUI and Implied Consent Warnings Issue
Drivers in Seattle and throughout the state are presumed to have consented to a test of their breath or blood alcohol level if they are suspected of driving under the influence. Driver’s may refuse the test, but they face increased penalties. But, the driver must make a knowing and intelligent decision about what to do. Implied consent warnings have designed to give the information necessary to make such a decision. If the implied consent warning is improperly given, the test shall be suppressed.
Elkins argued the implied consent warning was not complete because it didn’t tell her she could be subject to penalties even if she blew under .08 (if she was later convicted of DUI). Additionally, the implied consent suppression rule applies only to those that take the test after receiving the faulty warnings, not those that refuse. The implied consent warnings were properly given.
Felony Hit and Run Sentencing Issue
Trial courts may exercise their discretion and impose a sentence lower than the standard range. Elkins argued that the trial judge found that exceptional circumstances existed but didn’t believe he had the authority to lower the sentence below the standard range. In fact, the Court of Appeals found, the trial court did take into account the factors for mitigating the sentence but chose not to do so.
Holding –
All motions on appeal are denied. Case closed.
My analysis –
As criminal attorneys Seattle, this is the kind of situation that keeps us up at night. Not so much the outcome of the case, but the failure to raise what may have been a valid objection at trial that is later lost at the appellate level. The fact that one police officer said the other guy gave Miranda and then the other officer saying the other guy gave Miranda is very interesting to say the least and indicates that it’s possible Miranda was never given. Thankfully, however, it doesn’t seem to have made much of a difference in the end, since there was other overwhelming evidence against her. By the way, this is one reason I say never talk to the police, ever, and get a Seattle drug attorney as fast as possible.
Criminal Lawyer in Seattle | Lay Witness Testimony
This is the case of State v. Johnson, a Division II Court of Appeals case.
Facts –
Johnson allegedly “fell in love” with his neighbors daughter, a 17 year old. In the years leading up to this confession, Johnson engaged in several sexual acts with the daughter. Johnson was charged with child molestation. Johnson denied any wrongdoing. During the trial the State introduced evidence of a discussion between the daughter and Johnson’s wife which included inferences about their beliefs as to Johnson’s guilt. This included testimony that Johnson’s wife attempted suicide after the conversation. The State used this in their closing as evidence the allegations are well-founded.
Issue –
Was allowing the conversation between the daughter and Johnson’s wife erroneous?
Analysis –
Generally, no witnesses may give an opinion, either direct or inferentially, as to a defendant’s guilt. This is the job of the jury. Whether or not the opinion testimony is impermissible depends on: (1) the type of witness involved; (2) the specific nature of the testimony; (3) the nature of the charges; (4) the type of defense; and (5) the other evidence before the trier of fact.
In this case, we have the introduction of evidence regarding how the wife reacted when confronted with evidence related to the defendant, which is, essentially, her belief as to the truth of the information given, i.e. defendant’s guilt or innocence.
This information was collateral, shed little to no light on the credibility of any witnesses, and was highly prejudicial. And the fact that the issue is raised for the first time on appeal is moot because it affects a fundamental constitutional right – the right to a fair trial. With this information introduced, it was impossible for Johnson to get a fair trial.
Holding – case reversed.
My analysis -
This is one of the things that you find over and over as a practicing Seattle criminal attorney that makes life so difficult. Something does seem right. Something doesn’t smell right. The testimony that is being elicited is highly prejudicial, but you just aren’t sure how to properly explain that to the court in a way that they are going to buy and exclude from trial. And the State, like in the case above, often doesn’t let you know what they are going to try to do until they try to do it. This makes it that much harder.
In this case it is comforting of the court to recognize that a fundamental constitutional right is involved and the failure to object at trial does not eliminate it’s being heard before the court. It’s the kind of issue that may not make itself known to criminal attorney in Seattle until you’ve had some time to let it sink in.
I’d love to do more cases, because there are more, but I’ve run out of time today (I can only give you so much Seattle criminal attorney news in one day!).
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