New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

Commercial Litigation and Arbitration

New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
Commercial Litigation and Arbitration
« Back to Complex Lit Blog

Facebook Post Authenticated by Its Content, Timing, Appended Name, Witness Testimony She Recognizes Page as Alleged Author’s & Fact Page Is Password Protected — There Are as Many Ways to Try a Case as There Are Trial Lawyers (Good Quote)

Download PDF

State v. Fawver, 2015 Wash. App. LEXIS 1208 (Wash. Ct. App. June 9, 2015):

Corey Fawver challenges his convictions for first degree burglary and second degree assault, alleging both that his counsel's performance was flawed and the evidence did not support the assault conviction. We disagree and affirm.

FACTS

The incident in question arose after Mr. Fawver was forcefully thrown out of a New Year's Party at the residence of Christopher Pierce in Deer Park. Pierce punched and pushed Fawver out of the event in the early hours of January 1, 2013. Fawver left on foot and texted a friend that he had been "jumped" at the party.

Three friends arrived in a truck to pick up Fawver; they were followed in another car by two other men. The six men drove in the two vehicles back to Pierce's residence, arriving around 3:00 a.m. Several of the men, armed with baseball bats, [*2]  entered the residence and a melee ensued. Many of the partygoers fought back against the invaders. Two of them identified Fawver as being among the group wielding baseball bats.

Pierce eventually was discovered outside, bleeding from head and face injuries. Among his injuries, he was discovered to have subdural hematomas and star-shaped skull fracture consistent with a blunt force injury. Pierce, who did not want to cooperate with investigators, was found to have a blood alcohol level of .17. Fawver, who was interviewed by police three months after the incident, told them that he also had been very intoxicated that evening.

Mr. Fawver and another man eventually were jointly charged with first degree burglary and second degree assault; each charge also was alleged to have been committed with a deadly weapon other than a firearm. The charging theory on the assault count was that the two men had assaulted Pierce "with a deadly weapon, to-wit: a baseball bat." Clerk's Papers (CP) at 1-2. Mr. Fawver's matter proceeded to a separate jury trial without the co-defendant.

Detective Michael Drapeau testified that he "screen grabbed" images from the Facebook page of Mr. Corey Fawver. One posting, shared with the jury, was [*3]  from January 1, 2013. Mr. Fawver's name and picture accompanied the post. The post was admitted as an exhibit without objection. It read: "Wow What a fun Night ppl [people] in dp [Deer Park] are not bad as they think they are." Exhibit 1, see Report of Proceedings (RP) at 140.

The defense presented evidence that Mr. Fawver had not wanted to return to the scene with his friends and had not wielded a weapon. Mr. Fawver did not testify. Defense counsel argued the case to the jury on a theory that his client reluctantly had been present but had not taken part in the fight. The jury was instructed, in relevant part, that to convict Mr. Fawver of second degree assault, it had to find beyond a reasonable doubt that he "assaulted Christopher Pierce with a deadly weapon." CP at 63. The jury also was instructed on the definition of a "deadly weapon" and on accomplice liability. CP at 67, 69.

The jury convicted Mr. Fawver on both counts and also concluded that the crimes were committed with a deadly weapon. Given Mr. Pierce's active participation in the offense, the court imposed an exceptional sentence below the standard range of 3 months to be served consecutively to the 36 months required by the deadly weapon enhancements. [*4]  Mr. Fawver then timely appealed to this court. The State did not cross appeal the exceptional sentence.

ANALYSIS

Mr. Fawver's appeal challenges both his counsel's performance and the evidence supporting the assault conviction. We address the two issues in the order noted.

Ineffective Assistance of Counsel

Mr. Fawver first alleges that his trial counsel performed ineffectively by not objecting to the Facebook post and by not seeking an

Share this article:

Facebook
Twitter
LinkedIn
Email

Recent Posts

1) Rule 11 Sanctions: “No First Amendment Exception to a Rule 11 Violation” — “[T]he First Amendment Covers Novel, Nonfrivolous Arguments, But Many Frivolous Arguments Are Also Novel” (Good Quotes) — Frivolous To Continue To Make Rejected Novel Arguments; (2) FRAP 38 Sanctions: District Court In Best Position to Set Sanctions, Attorney’s Fees and Costs

3 Prerequisites for Inherent Power and § 1927 Sanctions in Second Circuit: (1) Bad Faith, (2) Conduct That Is Entirely Without Color [Thus, An Ill-Motivated Colorable Position Appears to Be Protected in the Second Circuit], and (3) Improper Purpose— “To Gain A Strategic Advantage” Is An Improper Purpose — Due Process Satisfied by Opponent’s Motion and Multiple Court Conferences, After Which Target Was Allowed to Submit Additional Letters

Inherent Power Sanctions — Untimeliness as Laches — Laches Properly Applied to Deny Sanctions Motion — Note Waived Defenses to Laches

Rule 37(c)(1) Sanctions: Substantial Justification or Harmless Error (Ninth Circuit Factors) — Erie: When State Supreme Court Has Not Squarely Addressed an Issue, Circuit Must Predict How It Would Rule, Using Intermediate Appellate Decisions, Decisions from Other Jurisdictions, Statutes, Treatises And Restatements for Guidance

(1) Appellate Review of Inherent Power Sanctions (7th Circuit): Factual Findings Reviewed for Clear Error, Choice of Sanction for Abuse of Discretion — 4-Element Test for Reversal; (2) Sanctions and Class Actions: Monetary Sanctions Properly Imposed on Defendants for Improper Communications with Class Members (Represented Parties) — “[I]f The Class And The Class Opponent Are Involved In An Ongoing Business Relationship, Communications From The Class Opponent To The Class May Be Coercive” (Good Quote); (3) Monetary Sanctions under Goodyear v. Haeger: If Same Fact-Gathering Would Have Been Conducted Absent The Misconduct, No But-For Causation — But Only “Rough Justice” Required, “Not Accountant-Like Precision” (Good Quote) — Once Misconduct Is Clear, Time Spent Ferreting It Out Compensable under Goodyear; (4) Goodyear Did Not Overrule Long-Standing Rule That Courts May Impose Modest Civil Monetary Sanctions to Curb Litigation Abuse; (5) Appellate Jurisdiction Lacking Where Sanctioned Attorney Fails to File Notice of Appeal and Lawyer’s Intent to Appeal Not Apparent from Client’s Notice; (5) Rule 11 Improper Purpose — Party May Have Many Purposes for Pursuing Claim — As Long As Claim Is Supported by Good Faith Belief in the Merits, “A Parallel Reason Does Not Violate Rule 11” — To Deny A Motion for Sanctions, The District Court Need Not Address Every Argument: “Arguments Clearly Without Merit Can, And For The Sake Of Judicial Economy Should, Be Passed Over In Silence” (Good Quote); Non-Monetary Sanction on Counsel: Complete Twice The Required Amount Of Professional Responsibility Hours For Her Next Continuing Legal Education Cycle Imposed By The State Bar

(1) Spoliation: Sanctions Are Warranted Only If the Movant Establishes That A Reasonable Trier of Fact Could Find That The Destroyed Evidence Would Support A Claim Or Defense — § 1927 Sanctions: “Courts Often Refuse to Award Sanctions When Both Parties Contributed to the Waste of Judicial Resources” (Good Quote)

No Sanctions Imposed on Counsel Who Submitted A.I.-Generated Phony Cases Without Checking Them in Good Faith on The Mistaken Assumption They Had Been Provided by Highly Respected Co-Counsel Rather Than His Criminally-Convicted, Disbarred Client — No Sanctions on Client Who Had No Access to LEXIS or Westlaw to Check the Phony Cases and Submitted Them in Good Faith: “It Would Have Been Downright Irrational For Him To Provide Fake Cases For [His Lawyer] To Include In The Motion Knowing They Were Fake —

(1) Electronic Spoliation — Rule 37(e)(2) Dismissal Sanction — Temporal Proximity of Spoliation to Production Due Date = Circumstantial Evidence of Intent; (2) While Discovery Sanctions Are Reviewed For Abuse Of Discretion, Findings Of Fact Related To Discovery Sanctions Are Reviewed For Clear Error; (3) Dismissal under Rule 37(e)(2) Plus Attorney’s Fees under Inherent Power Appropriately Combined [But see 2015 Advisory Committee Note: “New Rule 37(e) … authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. forecloses reliance on inherent authority or state law to determine when certain measures should be used.”]; (4) Compensatory Sanctions under Goodyear v. Haeger Appropriately Include Fees and Costs Resulting from Attempts to Settle Spoliation Motion

(1) FRAP 38 Sanctions Inapt for Appeal That Is Weak — “Borderline Frivolous” — Test Is Whether Appellant Should Have Known the Appeal Had Absolutely No Chance of Success — (2) Lay Opinion Testimony under Rule 701: Nub of Helpfulness Requirement Is to Exclude Testimony When the Witness Is No Better Suited Than the Jury to Assess the Issue; (3) Appeals: No Appeal from Denial of Motion for Judgment As a Matter of Law Unless Appellant Made That Motion Before Case Was Submitted to Jury

(1) § 1927 and Inherent Power Sanctions — Extrajudicial Misconduct After Obtaining Verdict: Filing Lis Pendens Based on False Statements and in Violation of Governing Law, Filing Fraudulent Abstracts of Judgment That Represented They Had Been Court-Issued; (2) Rule 37 Sanctions for Baseless Motion to Compel Required Unless Target Shows That the Motion Was Substantially Justified Or Other Circumstances Make An Award Of Expenses Unjust

Archives
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.
New York Attorneys JHA handles range the gamut of complex financial and commercial litigation and arbitration, including securities, RICO, corporate and contract disputes, credit default swaps, derivatives, and class, mass, and derivative actions. The firm also represents law firms in major disputes.

New York Office

© 2024 Joseph Hage Aaronson LLC  
Disclaimer | Attorney Advertising Notice | Legal Notice