Seattle Criminal Attorney | Burglary and Guns Cases
November 16, 2009A different week, an additional post reviewing the key criminal law case decisions from the Court of Appeals and the Supreme Court of the State of Washington. Even though last week there was an key determination that affects a lot of Everett DUI prosecutions, this week, the actual effect of the cases on the practice of law for your average Seattle criminal attorney is trivial.
To give you a brief preview, we have two decisions, one out of Division II of the Court of Appeals and one out of Division III of the Court of Appeals. It was a slow week for the Supreme Court – they didn’t publish any up-to-the-minute cases of consequence. The Division II case concerns something DUI attorneys in Seattle will run into from time to time, or at least face questions on – the restoration of firearm rights after a driving under the influence conviction. The Division III case concerns the fundamentals of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate transgression mandatory for a guilty verdict of residential burglary. Let’s get going!
Restoring Fire Arms Rights – State v. Mihali
Facts – State v. Mihali is a case about restoring fire arms rights to an human being convicted of a offense. Mihali, in 2000, was found guilty of conspiracy to manufacture a controlled substance (i.e. drugs – almost certainly methamphetamine). In 2004 Mihali received a certification from the Department of Corrections that she had fulfilled the terms of her prison term, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) not including the entitlement to possess and/or own a weapon. In 2008 she filed with the court a motion to restore her firearms, alleging that she had met all of the requirements to have her right to firearms restored. The state opposed this motion, quarrelling that the required 10 years had not elapsed since her guilty verdict was completed, which is a requirement because she was found guilty of a class B felony. The court settled with Mihali and restored her firearms rights – the State appealed.
Issue – Was Mihali eligible to have her right to have a gun restored?
Analysis – weapon restoration rights are governed by RCW 9.41.040(4). It states that a person with no a conviction for a sex offense or a Class A felony may plead the court to have their right to have a weapon if:
(b)(i) If the conviction or finding of not guilty by reason of insanity was for a felony offense, after five or more consecutive years in the community without being found guilty or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the individual has no prior felony convictions that prohibit the possession of a weapon counted as part of the offender score under RCW 9.94A.525
The state’s line of reasoning that two conditions must be met before firearms will be restored is a sound one: (1) five or more years in the community without being found guilty or currently charged with a transgression; and (2) no previous felony convictions in her dui defense history that would be incorporated in her offender score computation that prohibit possessing a gun. The issue in scrutiny here is the date from which the second prong of the examination is calculated from. The state contends the ten year look back period goes from the date of the petition for restoration of weapon rights. Mihali argues the ten year look back period should be from the date of the last guilty verdict. If the state’s view is adopted, Mihali is not suitable. If Mihali’s view is adopted, she is.
This issue has been raised and answered in prior case decisions. There we determined that the Legislature intended the look back phase to be from the date of the petition for gun restoration. Although the decisions in these cases were not exactly on point because they weren’t discussing this law specifically, the breakdown is comparable. Furthermore, this is reflected in the Legislative history of the statute.
Holding – The trial court’s conclusion reinstating Mahili’s gun rights is overturned. Mahili must delay ten years from the date of her last conviction before the court can think about firearm right restoration.
Seattle criminal defense attorney’s Analysis – In cases such as these, whether or not the law appears to be fair, it is the law. I think the court decided the way that it should have, even though it forces Mihali to wait five more years to have her gun rights restored. It was in all probability worth a shot from Mihali’s dui defense attorney because the subject hadn’t been litigated, but it was a long shot to be upheld by the Court of Appeals. The fact is, at the time of her petition for gun right restoration, Mihali had a felony conviction that would have counted as part of her offender score.
Elements of Residential Burglary – State v. Devitt
Facts – State v. Devitt is a case about the essentials of residential burglary, namely whether or not obstructing a law enforcement officer counts as the predicate offense mandatory for a conviction of residential burglary. The case starts with the cops thinking Devitt stole a car and was caught up in a hit and run. The cops viewed him near to the accident and Devitt took off and ran from them. He ended up hiding in an apartment complex, sooner or later finding himself in the apartment of a woman. While there Devitt talked to the woman, had a glass of iced tea, made a phone call (with her authorization), and just hung out waiting for the officers to leave. The woman said she wasn’t in fear for her wellbeing. After a bit she went outside to take out the trash and let the cops know Devitt was in her residence.
Devitt was charged with residential burglary (first degree dui defense trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the conclusion of the state’s case, Devitt moved to dismiss the burglary charge for failing to provide evidence all of the fundamentals, namely that Devitt planned to commit a transgression against the person or property in the house. The court said obstructing a law enforcement cop was enough, and let the case go to the jury. Devitt was found guilty of all the charges.
Issue – Is obstructing a police officer sufficient to meet the underlying crime obligation of residential burglary?
Analysis – Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a dwelling other than a van with intention to commit a transgression against a individual or belongings therein. To substantiate his stance that obstructing a law enforcement officer should not make a difference as the underlying offense, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a crime against a individual, much less anyone other than the cop.
The words of the residential burglary statute requires a definite crime (against a self or property) in a specific place (inside a house) and with a detailed intent (to enter the home to commit the offense). Because of this, more than just the intent to commit a offense generally is requisite.
The condition that the crime intended to be committed be done “therein” or within the lodging, is also key. In this case there was no law enforcement officer in the home, making it hard for Devitt to have entered the abode to commit that specific misdeed.
Holding – the state failed to establish the elements of the residential burglary law. The case is dismissed with prejudice.
Seattle DUI Lawyer’s Analysis – Really? Are you freaking kidding me? Why would the prosecutor even charge this misdeed, much less see it through to a jury trial and then contend their completely irrational stance to the court of appeals? And why would the trial court judge not read the statute and realize the elements of the offense had not been met? I am a Seattle criminal lawyer, so I am a little biased. But I am not the type of Seattle criminal defense attorney that is an apologist for my clients. I see the facts and I see the crimes charged and I work from there. Why can’t prosecutors do the same thing?
This is a great example of some of the things we are forced to deal with all the time that gum up the criminal justice system, make everyone grumpy, and make defense attorneys think prosecutors are unreasonable and gunning for victories at all times. If this prosecutor would have amended the charges to first degree trespass there would have been no trial, there would have been no appeal, and all of this time would not have been wasted. A first year law student should be able to make the analysis necessary to get this conclusion right.
That’s my two sense for today. Stay tuned to the Seattle Criminal Attorney News Blog next week for another installment of the latest criminal defense decisions from Washington State. Hopefully there will be more exciting news.
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