Seattle Criminal Attorney | Guns and Burglary Cases
A different week, another Seattle Criminal Defense Attorney Blog 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 main decision that affects a lot of Seattle DUI prosecutions, this week, the actual effect of the cases on the practice of law for your average Seattle criminal attorney is small.
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 import. The Division II case concerns something Seattle DUI attorneys will run into from time to time, or at least face questions on – the restoration of gun rights after a DUI conviction. The Division III case concerns the elements of residential burglary and whether or not obstructing a law enforcement officer counts as the predicate crime necessary for a conviction 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 found guilty of a transgression. Mihali, in 2000, was convicted of conspiracy to manufacture a controlled substance (i.e. drugs – possibly methamphetamine). In 2004 Mihali received a documentation from the Department of Corrections that she had finished the terms of her punishment, was discharged from DOC supervision, and had all of her civil rights restored (right to vote, etc.) excepting the privilege to possess and/or hold a firearm. 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 necessary 10 years had not elapsed since her guilty verdict was fulfilled, which is a prerequisite 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 entitled to have her right to own a firearm restored?
Analysis – firearm 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 own a firearm if:
(b)(i) If the guilty verdict 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 convicted or found not guilty by reason of insanity or currently charged with any felony, gross misdemeanor, or misdemeanor crimes, if the human being has no prior felony convictions that prohibit the possession of a firearm 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 reliable one: (1) five or more years in the area without being convicted or currently charged with a misdeed; and (2) no former felony convictions in her driving under the influence history that would be included in her offender score calculation that bar possessing a gun. The subject in scrutiny here is the date from which the second prong of the scrutiny is calculated from. The state contends the ten year look back period goes from the date of the petition for restoration of gun 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 appropriate. If Mihali’s view is adopted, she is.
This issue has been raised and answered in previous case decisions. There we determined that the Legislature intended the look back era to be from the date of the petition for gun restoration. Although the decisions in these cases were not directly on point because they weren’t discussing this statute specifically, the scrutiny is analogous. Also, this is reflected in the Legislative history of the statute.
Holding – The trial court’s determination reinstating Mahili’s firearm rights is overturned. Mahili must wait ten years from the date of her last conviction before the court can contemplate firearm right restoration.
Bellevue criminal defense lawyer’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 weapon rights restored. It was in all probability worth a shot from Mihali’s criminal defense lawyer because the matter 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 weapon right restoration, Mihali had a felony guilty verdict 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 crime obligatory for a conviction of residential burglary. The case starts with the cops believing Devitt stole a car and was involved in a hit and run. The cops witnessed him nearby 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 goblet of iced tea, made a phone call (with her consent), and just hung out waiting for the officers to leave. The lady said she wasn’t in anxiety for her wellbeing. After a bit she went outside to take out the trash and let the officers know Devitt was in her high-rise.
Devitt was charged with residential burglary (first degree criminal defense trespass as an alternative), obstructing a law enforcement officer, and resisting arrest. At the end of the state’s case, Devitt moved to dismiss the burglary charge for failing to demonstrate all of the fundamentals, namely that Devitt planned to commit a misdeed against the person or possessions in the house. The court said obstructing a law enforcement police officer 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 offense prerequisite of residential burglary?
Analysis – Residential burglary is defined in RCW 9A.52.025(1) as: entering or remaining unlawfully in a place of abode other than a car with plan to commit a transgression against a person or belongings therein. To substantiate his stance that obstructing a law enforcement officer should not be significant as the underlying crime, Devitt pointed the court to the prosecutor’s standards for charging crimes. Obstructing a law enforcement officer is not characterized anywhere as a transgression against a individual, much less anyone other than the officer.
The words of the residential burglary statute requires a exact misdeed (against a individual or possessions) in a explicit place (inside a dwelling) and with a detailed intent (to go in the lodging to commit the offense). Because of this, more than just the intent to commit a misdeed generally is required.
The condition that the transgression intended to be committed be done “therein” or inside the abode, is also important. In this case there was no law enforcement officer in the home, making it hard for Devitt to have entered the home to commit that exact transgression.
Holding – the state failed to show the essentials of the residential burglary law. The case is dismissed with prejudice.
Seattle Criminal 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 awkward position to the court of appeals? And why would the trial court judge not read the statute and realize the elements of the transgression had not been met? I am a criminal lawyer in Seattle, so I am a little biased. But I am not the type of dui defense 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 drunk driving justice system, make everyone grumpy, and make defense lawyers 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 decision right.
That’s my two sense for today. Stay tuned next week for another installment of the latest criminal decisions from Washington State. Hopefully there will be more exciting news.
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