Prosecuting Strangulation Cases Casey Gwinn, Esq.

1. Prosecuting Strangulation CasesCasey Gwinn, Esq.

2. Prosecutors… We need you to lead us forward…

3. Thank you, Sherry Clester – Pinellas County, Florida • Audit the Cases in Your Community • January 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.”  

4. Personal Reflections As We Begin • We need passionate determined prosecutors • If you don’t have passion, go do something else • If you are burned out, go do something else • Submit 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…

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

6. Themes Today • Know the law – It supports prosecution of non-fatal strangulation assaults • Evidence-based prosecution with victim engagement whenever possible must be our goal • We should not be re-victimizing victims to hold offenders accountable • Aggressive prosecution is best done in a collaborative CCR, FJC, MDT Model • Strangulation cases should be our highest priority

7. 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.”

8. Florida Supreme Court • The 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…”

9. 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)).

10. 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)).

11. Evidence to Support Strangulation • Evidence 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)).

12. No Need to Prove Difficulty Breathing • In 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

13. No need to show complete inability to breathe • State 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.

14. 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.

15. Strangulation was deadly force in rape • Miske, Jr. v. State of Indiana (2015) Unpublished, 32 N.E.3d 845 • D 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.

16. 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.

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

18. Strangulation Defined and Discussed • Detailed 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).

19. 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 danger • Defendant’s Self Defense Argument Not Warranted (State v. Crudup, 415 S.W.3d 170 (Mo. Ct. App. 2013)).

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

21. 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.

22. Comm v. Troville (2016) Unpublished89 Mass.App.Ct 1136 • A 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.

23. Victim’s statements to physician were admissible as medical diagnosis • State v. Porter (2018, Montana) 390 Mont. 174 • No 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 treatment • All 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.

24. Forfeiture Cases It could save your case

25. Cody v. Commonwealth (2018, VA)68 Va.App. 638 • Strangulation 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. 

26. Attempted Murder Conviction People v. Vicary El Centro, CA Congratulations to Deputy DA Michael Domenzain

27. Attempted Murder • People v. Vicary, 2014 Cal.App. Unpub. Lexis 3602 • D 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

29. Strangulation with Ligature was Attempted Murder • Whitham v. State of Indiana (2015) Court of Appeals Case No. 39A01-1504-CR-134 • D 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”

30. The Earliest Evolution of Evidence-Based Prosecution of Domestic Violence Cases… Los Angeles, CA Duluth, MN San Diego, CA Iowa City, Iowa Nashville, TN Quincy, MA And others…

31. 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 testimony • Domestic 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 prosecute • Domestic violence often escalates over time without intervention • Most domestic violence homicides have a prior history of misdemeanor domestic violence • The Impact of Domestic Violence on Children Justifies Aggressive Intervention

32. 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?”

33. Evidence-Based Prosecution • 911 tapes and printouts • Child witness statements • Neighbor witness statements • Medical records • Text messages/Snap Chat/Wikr • Paramedic/EMT statements • Prior police reports/Prior Incidents • Restraining order declarations • Booking records • Jail Calls • Communications from the suspect • Videotaped/Audio taped interviews with the victim • Don’t Forget the Defendant’s…

34. 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?

35. 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.

36. What other evidence wins the case? • Text Messages/Snap Chat/Emails/Facebook/Wikr/Pictures and Follow Up Pictures • Body diagrams • Child witnesses • Family/Neighbor witnesses • Witnesses to prior incidents • Expert testimony • Good police officers on the witness stand • Notes, cards, letters, text messages, emails • Recorded defendant calls from jail

37. Urination or Defecation • Involuntary urination or defecation (sphincter incontinence)

38. BETTER WAY TO DEMONSTRATE

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

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

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

43. The Power of a Body Camera in a Strangulation Case…

44. 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

45. 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?

46. People v. Michael Shields

48. Get and Use the Hallmark Greeting Cards!

49. “Minimum Requirements for our Relationship from David to Bella” • I need to know about your day each day • I 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.

50. 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.