Prosecuting Strangulation Cases - PowerPoint Presentation

Prosecuting Strangulation Cases Casey Gwinn, Esq.

Prosecutors…We need you to lead us forward …

Thank you, Sherry Clester – Pinellas County, Florida Audit the Cases in Your CommunityJanuary 2015 - September 2015 out of 197 arrests for strangulation, only 25 cases were filed as strangulation,  (144 cases were completely dropped or not filed, and the remaining 28 were filed as a lesser charge).  Additionally, there have only been 4 prison sentences out of the 25 cases filed as strangulation.    “We looked deeper into the police reports that were not filed, and the evidence was there on many cases (independent witnesses, photos of injuries, written witness statements, medical treatment, some defendants even admit or partially admit to some violence.”  

Personal Reflections As We Begin We need passionate determined prosecutorsIf you don’t have passion, go do something elseIf you are burned out, go do something elseSubmit yourself to advocates and survivors…Be willing to be unpopular to do what is right… Keep your commitment to make sure the law keeps its promise…

When We Fail at Aggressive Intervention in the Criminal Justice System…Women, Men, Children, Family Members, Judges, and Police Officers Die…

Themes Today Know the law – It supports prosecution of non-fatal strangulation assaultsEvidence-based prosecution with victim engagement whenever possible must be our goalWe should not be re-victimizing victims to hold offenders accountableAggressive prosecution is best done in a collaborative CCR, FJC, MDT ModelStrangulation cases should be our highest priority

Washington Legislature:“The legislature finds that assault by strangulation may result in immobilization of a victim, may cause a loss of consciousness, injury, or even death, and has been a factor in a significant number of domestic violence related assaults and fatalities. While not limited to acts of assault against an intimate partner, assault by strangulation is often knowingly inflicted upon an intimate partner with the intent to commit physical injury, or substantial or great bodily harm. Strangulation is one of the most lethal forms of domestic violence.The particular cruelty of this offense and its potential effects upon a victim both physically and psychologically, merit its categorization as a ranked felony offense under 9A.36 RCW.”

Florida Supreme CourtThe Florida Supreme Court has ruled that strangulation of a conscious victim transforms a murder into a death penalty offense because it is per se “heinous, atrocious and cruel.” Johnson v. State, 969 So.2d 938, 956-957 (Fla. 2007).Strangulation is cruel act, with far-reaching consequences. “The particular cruelty of the offense and its potential effects upon a victim both physically and psychologically, merit its categorization and a ranked felony offense…”

Experts: Law Enforcement Detective’s Testimony That Strangulation Does Not Necessarily Result in External, Physical Injury Relevant (State v. Supino, No. A08-64, 2009 WL 1515255, *1 (Minn. Ct. App. 2009)).Officer’s Testimony Admissible Regarding Strangulation Signs and Symptoms (Carter v. State, 235 P.3d 221 (Alaska Ct. App. 2010)).Detective Qualified to Testify About Bruising in the Context of Strangulation Even if Not Medical Expert (State v. Battle, 415 S.W.3d 783 (Mo. Ct. App. 2013)).

Experts: Medical Nurse’s Non-Percipient Expert Testimony on Domestic Violence and Strangulation Properly Admitted (State v. Cox, 842 N.W.2d 822 (Neb. Ct. App. 2014)). Doctor Without Formal Strangulation Training Qualified to Opine about Strangulation Injuries (State v. Delgado 303 P.3d 76 (Ariz. Ct. App. 2013)).

Evidence to Support StrangulationEvidence of a “sore throat” due to strangulation assault is circumstantial evidence that supports a finding of “traumatic condition” (People v. Romero, No. B217891, 2011 WL 322393, (1Cal. Ct. App. 2011)).

No Need to Prove Difficulty BreathingIn State v. Williams , the North Carolina Court of Appeals held that the State did not have to prove that a victim had difficulty breathing to satisfy the statutory requirements for assault by strangulation. State v. Williams, 689 S.E.2d 412 (N.C. App. 2009).The victim testified that she felt the defendant was trying to crush her throat, that he pushed down with his weight on her neck with his foot, and that she thought he was trying to “chok[e] her out” or make her go unconscious, and that she thought she was going to die

No need to show complete inability to breatheState was not required to prove that a victim had a complete inability to breathe in order to prove the elements of assault by strangulation. State v. Braxton, 183 N.C. App. 36 (2007). Victim testified to four separate incidents in which defendant grabbed her by the throat, causing her to have difficulty breathing. Id.

Sitting on V, making it difficult to breathe, was SBI In re Naylor (2018) WL 372347 Unpublished.D entered a no contest plea to 1st aggravated DV and violating conditions of release. 5 months later, made a motion to withdraw which was denied. D appealed claiming his plea wasn’t voluntarily due to the court incorrectly stating the mens rea element. Positional asphyxia doesn’t amount to SBI. State can charge choking either by strangulation or by causing bodily harm in four ways. Sitting on the V causing difficulty breathing created a substantial loss or impairment of the function of a bodily membrane or organ – namely the lungs.

Strangulation was deadly force in rape Miske, Jr. v. State of Indiana (2015) Unpublished, 32 N.E.3d 845D convicted of rape, two counts of deviate conduct, confinement, strangulation, domestic batter, intimidation, battery and resisting law enforcement.D claimed strangulation was not deadly force.V was raped, sodomized, battered and repeatedly strangled and feared for her life. V suffered injuries to neck, face, arm, vagina and rectum; hair loss from hair pulling.Repeated Strangulation was deadly force creating SBI.

State v. Smith (2007) In State v. Smith,  9th Dist. Nos. 23468 and 23464, 2007–Ohio–5524,  sufficient evidence of serious physical harm to support a conviction for felonious assault was established with only the testimony of the victim and an emergency room physician. In Smith,  the victim testified that she almost lost consciousness due to the defendant violently choking her. Id.  The treating emergency room physician testified that he observed “a petechial rash on the upper portion of [the victim's] face and eyes,” and that her injuries were consistent with extreme choking pressure that constituted a “life-threatening act.” Id.  The court stated that“[ i]t is hard to fathom how choking a victim to the brink of unconsciousness does not… amount to a ‘substantial’ risk of death.” Id.

SentencingStrangulation and Rape Deemed Separate Conduct to Support Multiple Convictions (State v. Tannreuther, No. CA2013–04–062, 2014 WL 10785, *1 (Ohio Ct. App. 2014)).

Strangulation Defined and DiscussedDetailed Case Law Example Noting Strangulation Lethality and Injuries and Legislative Intent Defendant's act of applying pressure to victim’s neck for at least two seconds established that he applied pressure on throat of another.People v. Figueroa 968 N.Y.S.2d 866 (N.Y. City Ct. 2013).

State v. Crudup (Self-Defense)Judge refused to give jury self-defense instruction. Defendant appealed. Trial Judge Ruling Upheld. The trial court must submit a self-defense instruction when it is supported by substantial evidence.To claim self-defense, a defendant:must not have been the aggressor in the assault; must have reasonable grounds for the belief that he is faced with immediate danger of serious bodily injury;must not use more force than that which appears reasonably necessary; and must do everything in his power consistent with his own safety to avoid the dangerDefendant’s Self Defense Argument Not Warranted (State v. Crudup, 415 S.W.3d 170 (Mo. Ct. App. 2013)).

Maine v. Kimball (2015) 911 Tape Allowed in Strangulation Case as Excited Utterance and Ongoing EmergencyParamedics testified to victim’s statements and injuries – ADMISSIBLE!

Ward V. State (2016) 49502-1602-CR-96 (Indiana)Statements made by Victim to paramedic and forensic nurse did not violate the confrontation clause. Identity of the abuser admitted.Despite an “investigative” component, the forensic exam served the primary purpose test to furnish and receive emergency & psychological care. Identifying the attacker is integral to the standard of care for medical treatment of a domestic violence victim.

Comm v. Troville (2016) Unpublished89 Mass.App.Ct 1136A record which related directly & mainly to the treatment & medical history of the patient, should be admitted even though incidentally the facts recorded may have some bearing to the question of liability.The statements referring to choking were properly admitted.These statement were fact specific references to the reported cause of the injuries & were part of her medical history & relevant to treatment.

Victim’s statements to physician were admissible as medical diagnosis State v. Porter (2018, Montana) 390 Mont. 174No violation of confrontation clause. Statements were nontestimonial even though police drove her to hospital and waited her. V taken to hospital to rule out internal injuries and treatmentAll statements admissible: identity of attacker, what happened and she thought she was going to die.Dr. Kuehl testified she takes verbal histories to assess both their safety and their need for further treatment. She asks about identity to ensure safety of her patients upon discharge and prevent future harm. She ordered CT scan to rule out injury to carotid arteries based on the manner in which she was strangled – being lifted off the ground, feeling like she was going to die and losing consciousness.

Forfeiture Cases It could save your case

Cody v. Commonwealth (2018, VA)68 Va.App . 638Strangulation case where the defendant called the victim repeatedly from jail and she ultimately took the 5th.  The court allowed V statements to dispatcher (spontaneous) and forensic nurse (medical diagnosis) as exceptions to the hearsay rule.The statements to law enforcement were ruled testimonial but ultimately admitted after the court found forfeiture by defendant’s wrongdoing. 

Attempted Murder ConvictionPeople v. VicaryEl Centro, CA Congratulations to Deputy DAMichael Domenzain

Attempted MurderPeople v. Vicary , 2014 Cal.App. Unpub. Lexis 3602D strangled V to unconsciousness causing sore throat and petechiae. D Defendant only let go of the victim when an independent witness yelled at him. D then ran.V recanted. Claimed she liked rough sex and asked the D to strangle her. D claimed no premeditation. Heat of passion because she was going to leave him. Conviction of attempted murder and PC273.5 upheld.Imperial County, CA Attempted Murder Jury Trial Conviction, 2013 by DDA Michael Domenzain

Strangulation with Ligature was Attempted MurderWhitham v. State of Indiana (2015) Court of Appeals Case No. 39A01-1504-CR-134D struck the V with her own hands and then strangled her with a ligature causing her to black out. D told V she was too old and that she ought to die. Prior history of abuse. Jail calls amounted to consciousness of kill – D wanted his mom to tell V he would relocate if she agreed not to cooperate. V was state’s prime witness and without her they can’t do shit. Dr. Hawley testified to the injuries based on the photos - her injuries were so severe that the skin was completely wiped off and he had never seen any injury this severe in a non-fatal strangulation case. Guilty of attempted murder – Prosecutor argued there is only one reason you would put a ligature around someone’s neck and that’s to kill them. That’s not an accident. That is acting with a conscious objective to kill and to “close the deal”

The Earliest Evolution of Evidence-Based Prosecution of Domestic Violence Cases… Los Angeles, CADuluth, MNSan Diego, CAIowa City, IowaNashville, TNQuincy, MAAnd others…

Underlying Beliefs In the middle of fear, terror, and power and control dynamics, the victim should not be responsible personally for holding the criminal accountable.We don’t require the victim to “press charges” or “prosecute” in other “serious” crimes unless we cannot prove the case without the victim’s testimonyDomestic violence is not just a crime against an individual. It is a crime against the state/community.Strangulation is as “serious” as any crime we can prosecuteDomestic violence often escalates over time without interventionMost domestic violence homicides have a prior history of misdemeanor domestic violence The Impact of Domestic Violence on Children Justifies Aggressive Intervention

Don’t Put a Target on Her Chest Who presses charges?Who decides the disposition?If she says no to prosecution, do you…dismiss? Reduce the charge?If she is hard to deal with, do you... Plan less for her safety?Think more of the batterer?Does it matter if she never says “thanks? ”

Evidence-Based Prosecution 911 tapes and printoutsChild witness statementsNeighbor witness statementsMedical recordsText messages/Snap Chat/ WikrParamedic/EMT statementsPrior police reports/Prior IncidentsRestraining order declarations Booking records Jail Calls Communications from the suspect Videotaped/Audio taped interviews with the victim Don ’ t Forget the Defendant ’ s…

The Approach of the Police Officer What evidence is there other than the testimony of the victim?How can I prove this case six months from now if the victim does not show up in court?What evidence exists that I have never gathered before?If this was a circumstantial evidence homicide case, how would I prove it?

The Approach of the Prosecutor How can I prove this case if the victim does not testify in this case?What evidence exists that I have never used before?If this was a circumstantial evidence homicide case, how would I prove it?Judges need information…prosecutors are the conduit!!!!! Prosecutors -- be transparent with your law enforcement partners.

What other evidence wins the case? Text Messages/Snap Chat/Emails/Facebook/Wikr/Pictures and Follow Up PicturesBody diagramsChild witnesses Family/Neighbor witnessesWitnesses to prior incidentsExpert testimony Good police officers on the witness stand Notes, cards, letters, text messages, emails Recorded defendant calls from jail

Urination or DefecationInvoluntary urination or defecation (sphincter incontinence)

BETTER WAY TO DEMONSTRATE

“He didn’t strangle me, he just covered my mouth.”

Get and Use the Jail Calls…Thank you to Scott Kessler, DDA in Queens, NYC…

Capture and Obtain ALL Jail Calls in DV CasesProsecutor in Kane County, Ill. – First Case after DV Training

The Power of a Body Camera in a Strangulation Case…

Key Evidence: Notes, Cards, and Letters “I’m sorry for hitting you and leaving this way. I hit you too hard. Please forgive me. I love you. Love David & the Girls”Fresno Case, Mike Agnew

How to recover notes, cards, and letters from previous abuse? Can you please give me the notes, cards, text messages, and letters that he has given you after he has hurt you before?

People v. Michael Shields

Get and Use the Hallmark Greeting Cards!

“Minimum Requirements for our Relationship from David to Bella ”I need to know about your day each dayI need you to show interest and know about all my days.I need you to tell me every day that you love me. I need you to show me appreciation for my efforts in financially supporting us.

I need you to acknowledge the fact that we have a dog and to try to enjoy and interact with him. I need you to understand I need time alone each week (6-8 hours).I need a massage (one hour) from you once a week.I need you to take responsibility for cleaning the house.I need you to allow me to complete my sentence when speaking to you before you begin to speak to me.

I need you to maintain your body weight between 100 and 110 lbs. I prefer you at 106 lbs or less.You must wear your wedding ring at all times on the correct finger.I will also wear mine when you get me one with money you earned.

Do not blame me for the things that happen to you in your life.Life is the result of the choices we make in our lives. I do not want to have any more children. If you choose to remain married to me, you have no right to hold me responsible for any regret you may have if you develop the desire to have children while married to me.You must never hold me accountable for any lack of communication in our lives.

Text Messages

Question to victim…that will produce more witnesses for the prosecution Who else did you call before and after you called 911?

Take and Use the On-Scene Suspect Photos 55

It is about the evidence… and good expert witnesses… It is not primarily about the trial…

The Trial

Alliance Publishes Manual in 2013! IPV Strangulation CrimesIPV Strangulation Crimes Manual – Developed by the National Family Justice Center Alliance/Training Institute on Strangulation PreventionIn Partnership with the California District Attorneys Association Manual includes chapters on advocacy, investigations, prosecution, and legislation, among other topicsCan be re-published in any state in the country in collaboration with the Alliance

Prosecution - Trial Preparation Transcribe 911 tapesPrior felony/misdemeanor convictions Subpoena officers from prior DV incidentsSDT medical recordsBody DiagramProtective orders and declarations Prior DV police reports

Trial Preparation Continued File Discovery Motion (if applicable)Get a Wig Head Subpoena witnesses to office/FJC, not to courtPhotos, Diagrams, Demonstrative EvidencePrepare witnesses for trialKids-in-Court ProgramInterpreters Trial Brief and Voir Dire

Prepare Your Witnesses for TrialExplain pre-trial contacts by defense Explain subpoena process, ask where would s/he like to be served and subpoena to your officeExplain court attire Explain anticipated cross-examination strategies by defense Develop an in-house trial protocol with advocates

Jury Selection, continued: Identify batterers and victims One out of three jurors will lieUse judge’s chamber to discuss sensitive issues Questions: Do you think it ’ s possible to love someone & fear someone at the same time? Do you have a friend or relative that is a victim of domestic violence? Anyone with medical training, military training, martial arts experience, or other experiences with the critical nature of blood flow to the brain?

Prosecution - Jury Selection Use proposed voir dire questionsUse written questionnaire Address sensitive issues during voir direSexual bias, domestic violence, marital problems, victim fails to testifySelf-defense, reasons why victim would stay in an abusive relationshipWeapons, criminal history, expert witnesses Set the expectations for violence LOW Set the expectations for visible injury LOW

Prosecution - Opening Statement Re-create the emotion of the crimeUse your evidence - 80/20 Rule 911 tape, weapons, photos, and diagramsPick a theme Power & ControlStopping the violence, making the victim safer and holding the batterer accountable

Four Approaches Neither Party calls the victimDefense calls the victimProsecution calls uncooperative victimProsecution calls cooperative victim

Effective Intervention Themes Making the Victim SaferHolding the Abuser AccountableStopping and Preventing the ViolenceNever Letting a Victim Die in Vain Making Misdemeanors Matter

Putting on Your Case Put a police officer on first, lastAlternative: Expert first, cop in the middle, and cop lastNever put your victim on firstBelieve in your cause/Be passionate (or go do something else for a living)If you don ’t have good physical evidence, create some!Always use an expert!

Effective Cross Examination Comes From Understanding Batterers The on-scene officer lays the ground work, the detective builds on it, and the prosecutor completes it

Cross-examination of the Abuser Try to control the battererFocus on batterer’s emotions -- angerChoose appropriate level of disgust, rage, pity or sarcasmExpose use drugs or alcohol Expose dynamics of batterer - Lack of fearExpose motive to lieUse your impeachment evidence

Closing Argument Tell the story three timesUse powerpoint in your closing – for elements, evidence, etc.Discuss and dismiss the presumption of innocence (Rebuttal)Verbalize jury’ s bias and attitude that may exist about domestic violenceMake it politically incorrect for the jury to consider weak points in your case (Rebuttal)Give the jury a reason to convict

Connecting the dots with a chart for the jury Sign or Symptom AirflowBlood flowLoss of conscious Internal Injury, Pain or pressure “Couldn’t breathe” Body went limp Popping sound Couldn’t see Saw spots White shot out I don ’ t remember

Dr. Smock’s strategy:Use Esperanza Circle the signs and symptomsMark as an Exhibit

Effective Cross Examination Comes From Understanding Batterers The on-scene officer lays the ground work, the detective builds on it, and the prosecutor completes it

Cross-examination of the Abuser Try to control the battererFocus on batterer’s emotions -- angerChoose appropriate level of disgust, rage, pity or sarcasmExpose use drugs or alcohol Expose dynamics of batterer - Lack of fearExpose motive to lieUse your impeachment evidence

Closing Argument Tell the story three timesUse powerpoint in your closing – for elements, evidence, etc.Discuss and dismiss the presumption of innocence (Rebuttal)Verbalize jury’ s bias and attitude that may exist about domestic violenceMake it politically incorrect for the jury to consider weak points in your case (Rebuttal)Give the jury a reason to convict

Partner with each other on evidence gathering approachEvidence will always get better when everyone works together (Gwinn, Strack, 2006) Officers need prosecutors to help them know what is needed and provide feedback when the cases are successful and are notProsecutors get out there and spend time with patrol officers and deputiesProsecutors and detectives and victim witness advocates should ALL be co-located in an FJC

Partner with each other on safety/riskMaryland Lethality Assessment Model – Officers should be assessing for risk, calling an advocate (Family Justice Center) when the victim is a high risk, and putting the advocate on the phone with the victim at the scene of the crime Law enforcement should share the risk assessment information with the Family Justice Center – easy. No legal or ethical reason why victim cannot consent to share the information with the FJC – it is her information anyway.

Comm. v Sicard (2016) Unpublished89 Mass.App.Ct 1004 Bodily injury can be proved three ways:Permanent disfigurementLoss or impairment of a bodily function, limb or organA substantial risk of deathVictim had loss of consciousness; vision was impaired; swollen tongue; petechiae; subconjunctival hemorrhageDr. Mueller testified blocking airway for 20/40 seconds would cause unconsciousness & 4/6 to cause death Strangulation amounted to substantial risk of death

From a Shoe Box to… To overwhelming case volume…

1989 – DV Council

American Bar Association Research – 2001 – Study Did the victim want the court to just let him go? Yes 4%/No 96%Did the victim want him to go to court for what he did? Yes 55%/ No 45%Did the victim think it was good the case was prosecuted? Yes 90%/No 10% Would the victim call the police if he harmed her in the future? Yes 79%/No 11%/Maybe 10% Overall conviction rate, 96% Jury Trial Conviction Rate on Misdemeanor DV Cases: 70%

American Bar Association Still with the defendant? Yes 83%/No 17%Has the D threatened to harm you since his conviction? Yes 14%/No 86%Has the D damaged your property since his conviction? Yes 8%/No 92%Has the D been physically violent with you since his conviction? Yes 9%/No 91%Has the D been verbally or emotionally abusive since his conviction? Yes 37%/No 63%

Backlash and Controversies.. “Victimless prosecution”Victims being arrested for not coming to courtVictims dying after criminal and civil justice interventionAdvocates complaining about rights of victims being ignoredPendulums swing – White v. Illinois, Crawford, and now Michigan v. Bryant, Ohio v. Clark…

What is the future? Collaborative, coordinated public health approaches with CA/DV/SA together – Merged CACs and FJCsCo-located, bundled services (Survivor-centered, Choice-based)Multi-disciplinary/multi-agency servicesNew communities/cultures with increasing focus on prevention…the “before”Criminal and civil justice system professionals (law enforcement, prosecution, victim-witness advocacy, and community-based domestic violence/sexual assault programs, counseling services, medical services, spiritual support, economic assistance, and… A rejection of the categorical social service referral system…A rejection of silos…separate organizations each pursuing their own agenda/mission without integration Creating vehicles for community capacity building with accountability to survivors A bigger pie…

Additional Resources for Prosecuting Strangulation Cases Prosecuting Domestic Violence Cases without Victim Participation Sample Sentencing BriefsSample Sentencing MemorandumsSample Voir Dire Questions for Strangulation CasesUsing Federal Law to Prosecute DV Crimes in Indian Country document

It’s easy to join our mailing list! Just send your email address by text message: Text HOPEGIVER To 22828 to get started. Message and data rates may apply.

Thank you, OVW!This project is supported all or in part by Grant No. 2016-TA-AX-K067 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.