Under ER 404(b), evidence of prior bad acts is not admissible to show conformity with those acts.  In 2008, the Legislature carved out an exception to ER 404(b) by passing a bill that allowed evidence of prior sex crimes to be admitted in criminal sex cases.  But in 2012, the Washington Supreme Court held that this statute was unconstitutional.

Gower involves a bench trial that took place in 2009, after the Legislature’s ER 404(b) exception was in effect, but before it was held unconstitutional.  The State had charged Gower with a series of sex crimes relating to sexual contact with his minor step-daughter, SEH.  At trial, the State sought to admit the testimony of one of Gower’s other minor children, CM, and the trial court admitted CM’s testimony, stating that the evidence would have been inadmissible under ER 404(b), but was admissible under the statutory exception.  SEH also testified to her own experience at the hands of Gower.
Continue Reading State v. Gower: Anything is Reasonably Probable

In State v. Garcia, Jr., No. 88020-4, the State Supreme Court unanimously reversed the defendant’s first degree kidnapping and second-degree kidnapping convictions and remanded for a new trial of those convictions, but affirmed the defendant’s criminal trespass conviction.

The defendant, Phillip Garcia, Jr., believed he was involved in a car chase after hearing gun shots coming from other vehicles on a highway.  Garcia eventually abandoned his vehicle and ran to a gas station to seek help.  Upon learning the gas station was closed, Garcia broke into the gas station with a cinder block, but fled after hearing he triggered the station’s alarm.  Garcia then went to homes nearby, and ended up at the home where the victim was asleep.  Garcia entered the home through an unlocked door, then spoke with and remained with the victim for two hours before one of Garcia’s friends picked him up.

The State charged Garcia with first degree kidnapping based on his interactions with the victim, and first degree criminal trespass and burglary in the second degree for breaking into the gas station.  The State successfully excluded Garcia’s statements to the victim as hearsay, and also introduced a police report containing hearsay statements from Garcia’s previous burglary conviction.  A jury convicted Garcia of all three charges, and the Court of Appeals affirmed.  Garcia appealed, arguing there was insufficient evidence to support the kidnapping charge and that the trial court’s above evidentiary rulings were erroneous.
Continue Reading State v. Garcia, Jr. – Not Enough Evidence for First Degree Kidnapping Conviction

At its October 1, 2013 conference, the Washington Supreme granted review to four cases. We provide a summary of the issues presented in each case below.

State v. Owens
Supreme Court No. 88905-8
Court of Appeals No. 67867–1–I
PFR & Answer


Whether the Court of Appeals properly reversed a conviction for First Degree

At issue in State v. Dye (PDF) was whether a criminal defendant is denied a fair trial by allowing a developmentally disabled victim to testify with the assistance of a comfort dog.  Such trial management decisions are reviewed for abuse of discretion.  Based on the evidence presented to the trial court at a hearing on the special dispensation request, the Washington Supreme Court concluded, there was no abuse of discretion.
Continue Reading Anxious Trial Witness Permitted to Testify in Presence of Comfort Dog

In re Cross [Wash. Sup. Ct. No. 79761-7]

The Washington Supreme Court unanimously held in this opinion that a capital sentence can be predicated on an Alford plea.  The court explained that the “advantage” of entering an Alford plea in a capital case is to preserve the ability to argue in the penalty phase that the defendant’s actions were not premeditated.  But if entering an Alford plea does not allow a criminal defendant to avoid the death penalty, this so-called “advantage” hardly seems worthwhile.  Assuming defense attorneys agree with this assessment, Alford pleas may be both inadvisable and obsolete in capital cases.

Dayva Cross pleaded guilty to killing his wife and two of her daughters in 2001.  When Cross pled guilty, he did so by way of an Alford plea.  In such a plea, the accused technically does not acknowledge guilt but concedes that there is sufficient evidence to support a conviction.  A trial court judge can accept an Alford plea only if it is made voluntarily, competently, and with an understanding of the charge and the consequences of the plea and if the judge is satisfied that there is a factual basis for the plea.

Critical to the Supreme Court’s analysis here, the trial court judge and the prosecutor painstakingly walked Cross through the elements of the crimes of which he was charged, his potential defenses, the rights he was relinquishing, and the punishment he faced.  The trial transcript showed that there was substantial evidence from which a jury could find premeditation and a common scheme and design.  The decision to plead guilty was tactical:  it preserved Cross’s ability to challenge these elements in the penalty phase.
Continue Reading Washington Supreme Court Holds Alford Plea Will Support a Death Penalty Verdict

In the Matter of the Personal Restraint of Benjamin B. Brockie, No. 86241-9 (Sept. 26, 2013) (en banc)

Benjamin Brockie was charged by information for, among other things, first degree robbery.  Brockie’s charging information indicated that “in the commission of an immediate flight therefrom, the defendant displayed what appeared to be a firearm or other deadly weapon.”  (emphasis added).  Critically, the charging information did not provide for the alternative means of committing first degree robbery–being armed with a deadly weapon.  The jury instructions, however, did include this alternative charge.  After Brockie’s trial, a jury convicted Brockie of, among other things two counts of first degree robbery.  In response to these convictions and his subsequent sentencing, Brockie filed a pro se motion to vacate his judgment and sentence.  Brockie’s motion argued that his conviction should be vacated because the jury was improperly instructed on the alternative means of committing first degree robbery, which was not contained in the charging information.  The superior court where Brockie filed his motion considered it a personal restraint petition–a form of collateral attack–and transferred the motion to the Court of Appeals.  The Court of Appeals then transferred the motion to the Washington Supreme Court.
Continue Reading No Prejudice Where Jury Received Charging Instructions Not Included in Original Charging Information

In State v. Lynch, the Washington State Supreme Court confirmed that a trial court’s inclusion of an affirmative defense instruction upon an unwilling defendant violates the defendant’s Sixth Amendment rights in criminal prosecutions.
Continue Reading State Supreme Court Further Clarifies Distinction Between Casting Doubt on Elements of Charged Crimes and Affirmative Defenses