State v. MierzState v. Mierz
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John Paul Mierz appeals his conviction on two counts of assault in the third degree and one count of unlawful possession of wildlife as well as the trial court‘s order denying his motion for a new trial or arrest of judgment. He
Facts
On April 17, 1989, Mierz found two coyote pups at a construction site. He took them home and raised them in the same manner as his dogs. He kept them in his backyard, which is enclosed by a 6-foot chain link fence. Around July 1990, Department of Wildlife (Department) Captain Bill Hérmes informed Department agents Mike Krenz and Jim Suda that Mierz was in illegal possession of two coyotes. The agents were informed that Mierz did not have a permit allowing him to possess the animals as required by state law.
On September 5,1990, Mierz applied to the Department for a scientific use permit which, if issued, would have allowed him to keep the coyotes. On September 13,1990, the Department informed Mierz that he could not keep the coyotes without a valid permit and, on November 8, denied his application for a permit. Mierz requested an administrative appeal of the Department‘s decisions. On July 16, 1991, the date on which the underlying events in this case took place, the appeal was pending. The appeal was ultimately denied on July 31, 1991.
During this time, Agent Krenz saw Mierz interviewed on a news program. In the interview Mierz stated he was taking the coyotes to the Yakima Indian Reservation where the Department would have no jurisdiction. Shortly after the broadcast, Suda and Krenz drove by Mierz’ home and did not see the coyotes. Throughout the fall and winter of 1990-91, the agents monitored Mierz’ backyard when they were in the area to check for the presence of the coyotes. In the spring of 1991, Suda found out that the coyotes were back on Mierz’ property. Suda and Krenz later spoke with a judge and a prosecutor at Aukeen District Court about the need to
On July 16,1991, Suda, Krenz and Bruce Richards, another wildlife agent, met with Jeanne Wasserman of the Progressive Animal Welfare Society. They went to Mierz’ home and saw the coyotes in his backyard. Suda and Krenz spoke with Mierz at his garage door and informed him that they were there to retrieve the coyotes. The agents asked Mierz if he had a permit. Mierz told them that he did not but that his application was on appeal and it was his understanding that he was allowed to retain the coyotes pending the outcome of the appeal. Mierz invited the agents and Wasserman into his home to call Robin Sherry, the permit biologist at the Department, to verify this claim. Krenz attempted to contact Sherry and two other officials at the Department, but none was available.
Mierz then ushered the agents and Wasserman outside his house, shut the door behind him and stated: “I have had enough. Get out of here. Get off my property. Get out of my yard.” The agents informed Mierz they intended to confiscate the coyotes, and Mierz asked them if they had a search warrant. The agents replied that they did not need one because the coyotes were in plain view. At this point, the agents were standing outside Mierz’ fenced yard. They observed him go into the yard, catch the coyotes and put them in their kennel. Mierz later removed the coyotes from the kennel and appeared to be carrying them into his house. Agent Krenz told Mierz to put the coyotes back into the kennel, which he did. Mierz padlocked the kennel and threw the key over his fence.
Krenz approached Mierz and informed him he was under arrest and attempted to take hold of his arm in order to escort him to the agents’ car. Mierz began struggling and grabbed onto the chain link fence. Krenz again informed Mierz he was under arrest and attempted to peel his hand off the fence with a finger hold. Suda approached to assist Krenz, and one of Mierz’ dogs bit him on the back of the leg. Krenz reported that he heard Mierz command his dog to attack Suda. Mierz was eventually handcuffed and taken into custody. As he was being escorted to the agents’ car, he attempted to bite Krenz on the back of his hand. Mierz was also injured in the melee.
Mierz was charged with two counts of assault in the third degree, contrary to
Mierz’ trial began, and the jury heard testimony from one witness, Wasserman. After her testimony, Mierz’ attorney and the prosecutor agreed to a stipulated trial based upon all of the police reports related to the case, photographs, medical reports, witness statements and Wasserman‘s testimony. Mierz waived his right to a jury trial, and the court signed the findings of fact and conclusions of law prepared by the prosecutor and signed by Mierz and his attorney. The court questioned Mierz extensively regarding his understanding of the effect of agreeing to a stipulated trial, and Mierz indicated he
Represented by new counsel, Mierz then moved for a new trial, arrest of judgment or, alternatively, for a modification of the findings of fact and conclusions of law. The court denied the motion for a new trial or arrest of judgment and authorized certain revisions in the findings of fact and conclusions of law. This appeal followed.
Discussion
As a preliminary matter, we note that it is not clear from the parties’ briefs whether Mierz’ original trial counsel moved to suppress evidence obtained as a result of the agents’ entry into his yard. Mierz argues that the trial court should have granted a motion to suppress the evidence as the fruits of an unlawful entry, suggesting that his counsel did move to suppress this evidence. The State asserts his attorney never moved to suppress this evidence. We find no indication in the record that a motion to suppress was brought, and we treat this issue as one raised for the first time on appeal.
RAP 2.5(a) provides that an error of constitutional magnitude may be raised for the first time on appeal. Admission of evidence obtained in violation of either the federal or state constitution is an error of constitutional magnitude. A failure to move to suppress evidence, however, constitutes a waiver of the right to have it excluded, and the trial court does not err in considering evidence that the defendant has not moved to suppress. State v. Tarica, 59 Wn. App. 368, 372-73, 798 P.2d 296 (1990). Because there was no error below, this issue is not properly raised for the first time on appeal as a trial court error. As discussed below, however, this issue is properly considered in the context of whether Mierz received effective assistance of counsel, and we analyze it accordingly.
I
Ineffective Assistance of Counsel
A. Failure To Seek Suppression
To establish ineffective assistance of counsel, Mierz must show both that his counsel‘s performance was deficient
[a]s a normal rule, defense counsel brings such a motion anytime there may be a question as to the validity of a search and subsequent seizure. Because the motion is made pretrial and not in front of the jury, there does not appear to be any way to characterize the failure to bring the motion to suppress as a legitimate trial tactic. Therefore, [the defendant‘s] counsel‘s performance was deficient.
59 Wn. App. at 374. We then analyzed the probable outcome of a suppression hearing to determine whether the prejudice prong of the Strickland test was met. We based that determination on the likelihood that such a motion would have been granted. That prong was also satisfied in Tarica because a motion to suppress probably would have been granted had it been brought. 59 Wn. App. at 378.
Applying the same analysis to the facts of this case, we hold that Mierz’ trial counsel‘s failure to seek suppression of evidence obtained as a result of the agents’ warrant-less entry into his backyard was deficient. 3 However, we conclude that he was not prejudiced by this failure and cannot satisfy both prongs of the test for ineffective assistance of counsel. Thus, we cannot reverse his conviction on that basis.
First, no exigent circumstances were present. A warrantless search and seizure may be valid where exigent cir
Second, the consent exception does not apply. Under this exception, evidence obtained as a result of a warrantless search will not be suppressed where the defendant or a competent third party gives valid, voluntary consent and the ensuing search does not exceed the scope of the consent. State v. Hastings, 119 Wn.2d 229, 234, 830 P.2d 658 (1992). Although Mierz initially invited the agents into his home to use the phone, after escorting them out the front door he plainly stated that he wanted them off his property if they did not have a warrant. The agents obviously had no consent to enter into Mierz’ fenced backyard, and whatever initial consent they had to enter his home did not extend to his yard.
Finally, the agents had no statutory authority to enter Mierz1 yard to arrest him. Although a warrantless arrest may be effected where an officer has probable cause to believe a felony has been or is being committed or where a misdemeanor is committed in the officer‘s presence pursuant to
Because the agents’ entry into Mierz’ yard and his subsequent arrest were justified neither by an exception to the warrant requirement nor authorized by statute, Mierz’ trial counsel was deficient in failing to seek suppression of the evidence of assaults which was obtained through and, indeed, occurred because of their unlawful activity. Thus, we must determine whether Mierz was prejudiced, based on the likelihood that this evidence would have been properly excluded had a motion to suppress been brought. We conclude that he was not prejudiced because, as a matter of public policy, evidence of the assaults on the agents falls outside the scope of the exclusionary rule. 10
Mierz has not argued that exclusion of assault evidence is always an appropriate remedy. Rather, he has suggested that exclusion is appropriate where, as here, the injury to the offi
B. Stipulated Trial
Mierz also contends that he was denied due process and effective assistance of counsel because of the stipulated trial procedure used in his case. Mierz’ trial attorney agreed to a stipulated trial, and both he and Mierz signed the proposed findings of fact and conclusions of law prepared by the prosecutor. Mierz argues that, by doing so, his attorney stipulated to the conclusions of law, not just to the facts. The State argues that Mierz’ attorney stipulated to the facts only and that his signature constitutes his approval of the form of the document, not its content. Mierz also argues that the trial court did not independently arrive at its conclusions of law because it believed itself bound by both the findings of fact and conclusions of law submitted by the prosecutor, rather than by just the findings of fact upon which it was to reach its own legal conclusions.
The trial record does not support Mierz’ contentions. It is clear the trial court understood it was bound only by the stipulated facts submitted by the parties and not by the proposed conclusions of law. Furthermore, Mierz has not been prejudiced by any alleged deficiency in his counsel‘s performance because the record also establishes that the trial court independently reviewed the facts and reached its own conclusion about Mierz’ guilt. Mierz was not denied effective assistance of counsel by the stipulated trial process because he has shown neither deficient performance by his counsel nor prejudice to his case. See Tarica, 59 Wn. App. at 374.
II
Assault Convictions
We next address Mierz’ contention that the trial court erred in finding him guilty of two counts of assault in the third degree, contrary to
Mierz was charged under
Assaults a law enforcement officer or other employee of a law enforcement agency who was performing his or her official duties at the time of the assault.
Mierz contends he should have been charged under
With intent to prevent or resist the execution of any lawful process or mandate of any court officer or the lawful apprehension or detention of himself or another person, assaults another!.]
Mierz argues that, had he been charged under subsection (l)(a), he could have successfully argued the illegality of the agents’ warrantless arrest as a defense to the assault charges because that section of the statute requires that the apprehension be lawful. Because he was effectively denied this defense, he concludes, he was denied equal protection. He contends subsection (l)(a) is a special statute and subsection (l)(g) is a general statute. Thus, the prosecution was required to charge him under the former statute based on the rule requiring the State to charge under the special statute when concurrent statutes exist. See State v. Shriner, 101 Wn.2d 576, 580, 681 P.2d 237 (1984).
This argument is disposed of by our opinion in
State v. Belleman,
70 Wn. App. 778, 784, 856 P.2d 403 (1993). There we held that subsection (l)(g) was not a special statute because a violation of subsection (l)(g) is not always a violation of subsection (l)(a).
Mierz also argues that, because the agents were acting unlawfully when they entered his yard and arrested him, they were not performing their official duties and, therefore, cannot claim the protection of
A related issue is Mierz’ contention that the trial court erred in granting the State‘s motion in limine barring him from arguing defense of property in defending against the assault charges. Under RCW 9A. 16.020(3), force may be used
in preventing or attempting to prevent... a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession ....
As discussed below, Mierz was not in lawfiil possession of the coyotes. Because his possession was not lawful, the defense was not available to him under the statute, and the court properly barred it.
Ill
Possession of Wildlife Conviction
Mierz was convicted of unlawful possession of wildlife in violation of
all species of the animal kingdom whose members exist in Washington in a wild state. This includes but is not limited to mammals, birds, reptiles, amphibians, fish, and invertebrates. The term “wildlife” does not include feral domestic mammals ....
Mierz did not have a permit entitling him to possess the coyotes. However, he argues that he cannot be guilty of violating the statute because, as wild animals that have been domesticated, the coyotes are “feral domestic mammals“, not wildlife. Statutes are to be “construed to effect their purpose, and unlikely, absurd or strained consequences” are to be avoided. Ski Acres, Inc. v. Kittitas Cy., 118 Wn.2d 852, 857, 827 P.2d 1000 (1992). We reject Mierz’ proposed reading of the statute because it makes little sense. His interpretation would allow anyone to circumvent the statute by domesticating an animal that would otherwise be wildlife under the definition. Conversely, his reading would criminalize possession of an untamed domestic species. A more plausible reading is that the Legislature intended to exclude domesticated species (such as cats and dogs) when they exist in a wild or “feral” state from coverage under the statute.
Mierz argues in the alternative that, even if coyotes are wildlife within the meaning of the statute, he cannot be guilty of violating the statute because he was entitled to possess the coyotes pending the final outcome on his application for a permit. At the time the coyotes were seized, Mierz’ application for a permit had been denied and his appeal was pending. He argues that possession of the coyotes would not have become unlawful until the Department concluded its proceedings.
We affirm.
Webster, C.J., and Coleman, J., concur.
Reconsideration denied June 8, 1994.
Review granted at 125 Wn.2d 1007 (1994).
Notes
Mierz forwards 22 assignments of error and 10 issues pertaining to assignments of error. We have addressed only those we consider dispositive.
This advice was erroneous because the plain view exception to the warrant requirement does not even apply in this situation. A plain view seizure is valid where officers have a prior justification for an intrusion, they inadvertently discover incriminating evidence and they have immediate knowledge that an item is evidence. State v. Chrisman, 100 Wn.2d 814, 819, 676 P.2d 419 (1984). As is discussed infra, the agents did not have a prior justification for entering Mierz’ yard, nor was the evidence inadvertently discovered.
This discussion pertains only to evidence of Mierz1 assaults on the officers, not to evidence of his possession of wildlife. Had this case involved only the latter charge, his counsel‘s performance would not have been deficient. Mierz does not challenge the findings that he possessed the coyotes or that they were recovered from his yard. Because lack of possession was not a part of his defense to the wildlife charge, there was no reason for his attorney to seek to suppress evidence that he possessed the coyotes.
“At common law, the curtilage is the area to which extends the intimate activity associated with the ‘sanctity of a [person‘s] home and the privacies of life,’ Boyd v. United States. 116 U. S. 616, 630 [29 L. Ed. 746, 6 S. Ct. 524] (1886), and therefore has been considered part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U.S. 170, 180, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984). A fenced, locked backyard immediately adjacent to Mierz’ house is obviously within the curtilage as defined by the United States Supreme Court. United States v. Dunn, 480 U.S. 294, 301, 94 L. Ed. 2d 326, 107 S. Ct. 1134 (1987). See also State v. Walker, 154 Wis. 2d 158, 179-86, 453 N.W.2d 127, 136-38, cert. denied, 498 U.S. 962 (1990), in which the Wisconsin Supreme Court reached the same conclusion we reach here on virtually identical facts.
The agents’ entry into the fenced yard to remove the coyotes was a Fourth Amendment search, and the open view doctrine does not apply. Under that doctrine, an officer‘s observation of evidence from a lawful vantage point is not a search at all, and such observations can he used as the basis for securing a search warrant. State v. Ferro, 64 Wn. App. 181, 182, 824 P.2d 500, review denied, 119 Wn.2d 1005 (1992). The mere observation of contraband, which is what occurred here, does not justify a warrantless “intrusion into a constitutionally protected area for the purpose of examining more closely, or seizing, the evidence which has been observed“. 64 Wn. App. at 182.
No Washington case directly holds that a warrantless arrest in the curtilage of a home not open to public use is unlawful when no exception to the warrant requirement applies. However, our holding here flows directly from the Supreme Court‘s recent decision in
State v. Solberg,
122 Wn.2d 688, 861 P.2d 460 (1993). In
Solberg,
the court upheld a warrantless arrest on a front porch of a home. The
See Payton; Oliver v. United States, 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984).
The court ruled that, in preventing the agents from retrieving the coyotes, Mierz had obstructed an officer in violation of
In
State v. Aydelotte,
35 Wn. App. 125, 665 P.2d 443 (1983), we addressed the issue raised here and reached the same conclusion on a different basis. There, we held that such evidence should not be suppressed because, under the attenuation
See,
e.g.,
See, e.g., State v. Hoffman, 116 Wn.2d 51, 100, 804 P.2d 577 (1991) (stating, in dicta, that an officer is entitled to the protection of the laws against assault notwithstanding the officer‘s inadvertent infringement on a person‘s constitutional rights).
See Commonwealth v. Saia, 372 Mass. 53, 58, 360 N.E.2d 329, 332 (1977) (“as to our conclusion that the rule of exclusion is not applicable here, we suggest this: Suppose a police officer or other person had been killed in the affray . . .. That hypothesis illustrates the inappropriateness of any ruling that the observations of the police were inadmissible under the exclusionary rule“), cited with approval in Aydelotte, 35 Wn. App. at 133.
See State v. Johnson, 104 Wn.2d 338, 705 P.2d 773 (1985), in which the Supreme Court noted the following characteristics of a stipulated trial: the judge or jury determines the defendant‘s guilt, the State still hears the burden of proof beyond a reasonable doubt, the defendant is not precluded from offering evidence or cross-examining witnesses, but just stipulates to the evidence presented by the State, and the defendant retains the right to appeal. 104 Wn.2d at 343. On the other hand, when the court takes a guilty plea it merely determines whether the defendant‘s factual statement is sufficient to support a finding of guilt as to each element of the crime and whether the defendant is knowingly and intelligently waiving his trial and attendant constitutional rights. The court makes no finding of guilt as such, the defendant has no right to present evidence, and there is no right to appeal from a plea of guilty.
We do not address this issue further, except to note that the facts to which Mierz stipulated at trial are clearly sufficient to uphold his convictions.
This issue has heen addressed above in conjunction with the ineffective assistance of counsel issue.