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State v. Hatt

Court of Appeals of Washington, Division 1

November 18, 2019

THE STATE OF WASHINGTON, Respondent/Cross-Appellant,
v.
GEORGE DONALD HATT, JR., Appellant/Cross-Respondent.

          HAZELRIGG-HERNANDEZ, J.

         George Donald Hatt, Jr., seeks reversal of his convictions for first degree murder, unlawful possession of a firearm in the second degree, possession of an unlawful firearm, and evidence tampering. He contends that the State failed to disprove his claim of self-defense and that the trial court erred in giving an aggressor instruction, denying a motion to suppress evidence obtained during the execution of a search warrant, concluding that the two firearm counts were not part of the same criminal conduct, and imposing a criminal filing fee on an indigent defendant. In a statement of additional grounds for review, Hatt argues that the State failed to preserve allegedly exculpatory evidence and the court failed to protect his constitutional right to a speedy trial. We conclude that the court employed the incorrect analysis when determining whether the firearms counts were part of the same criminal conduct for purposes of offender score calculation and sentenced Hatt based on an incorrect offender score. Because of this error and because the parties do not dispute that the filing fee should be stricken, we remand for resentencing. Hatt's convictions are affirmed.

         FACTS

         In 2015, George D. Hatt, Jr. (Hatt), lived on a property in Granite Falls with his girlfriend, Lea Espy. Several other people lived on the property in various trailers and motor homes, including Jared Fincher, Shannon Sycks, and Mitch Stamey.

         Hatt's house was burglarized in the spring of 2015, and he believed that Andrew Spencer was responsible. Multiple witnesses heard Hatt say that he wanted to kill Spencer in retaliation for the burglary. Stamey heard Hatt say ten or more times that he was "going to get [Spencer] back." Hatt denied saying that he wanted to kill Spencer. He admitted to saying he was going to "get" Spencer, but testified that his intention was to make Spencer face him and confess to what he had done.

         On Halloween 2015, Spencer came to the Granite Falls property. Hatt assumed there was going to be a confrontation when he saw Spencer arrive. However, Hatt testified that Spencer wanted to resolve the issues between them because he had "two violent felonies, and one more strike and he'll do life." Other residents on the property confirmed that the two were discussing the burglary and seemed to be on good terms. After they talked, Hatt was confident that they had resolved the issue.

         In early November 2015, Andrew Spencer drove to the property with his friend Kindall Lowenberg in the passenger seat of his car. While they were driving to the property, Spencer asked Lowenberg how she dealt with confrontation. Stamey was leaving the property at about the same time and encountered Spencer on the road. Spencer and Stamey spoke through the windows of their vehicles. Stamey then called Espy's phone to alert Hatt that Spencer was on his way. Hatt and Espy were in the upstairs living area of the main house. Fincher was working on a car outside the main house. After Stamey's call, Hatt yelled out the window of the house to Fincher, "Andrew's here."

         When Spencer arrived, he got out of his car and walked over to Fincher. Spencer had his left hand concealed in the pocket of his hoodie. Fincher extended his right hand to shake hands with Spencer because he thought they were on good terms. Spencer grabbed his outstretched hand, pulled Fincher toward him, and punched him in the face with his left fist. Spencer did not have a gun or a weapon of any kind, but Fincher suspected he might have had something in his left fist because of how hard he hit.

         Fincher fell to the ground, and Spencer hit and kicked him about six more times. Then Spencer said, "Now that you're warmed up, we can talk." At about the same time that Spencer made that comment, Fincher heard the sounds of Hatt running down the exterior staircase that led to the second floor of the main house and cocking a gun. Hatt fired two shots, one of which hit Spencer in the head and killed him. When he heard the shots, Fincher curled up on the ground for cover. Fincher was scared that he would also be shot because Hatt had told him in the past, "Jared, if you're ever here and Andrew shows up, you get the hell out of here, because I have to kill you too because I can't have witnesses."

         When Fincher looked up, he saw that Spencer was dead and saw Hatt walking to Spencer's car. Hatt told Fincher to clean himself up; Fincher was bleeding from his lip and hands. Fincher went into the house to put on a clean shirt because his was covered in blood. Hatt sat down in the driver's seat of Spencer's car and begin talking to Lowenberg, who was still sitting in the passenger seat. Hatt was still holding the gun when he got into the car. He locked the car doors and asked Lowenberg if she needed any money. Hatt told her not to tell anyone what had happened that night. As Fincher emerged from the house, he saw Hatt getting out of Spencer's car. Lowenberg heard Hatt say to Fincher, "I asked you if you want me to do this. I'm not going down for this alone."

         Hatt told Fincher to cover the body, and Fincher covered it with a tarp. Hatt told Hoy, who had been asleep in Fincher's trailer until she heard the gunshot, to ride with Espy and take Lowenberg home. As she walked to the car, Hoy noticed a person on the ground covered with a tarp. She got into Hatt's sport utility vehicle (SUV) with Espy and Lowenberg, and Espy drove Lowenberg home.

         Hatt began digging a hole in a fire pit on the property and instructed Fincher to help him drag Spencer's body to the hole. They put the body in the hole bent over at the waist. Hatt remarked that Spencer would "forever be known as kissing his own ass." He jumped up and down on Spencer's back five or six times before starting to shovel dirt onto his body. Hatt instructed Fincher to "grab a shovel and give [him] a hand." He then grabbed a dumbbell and threw it on the body a few times. After the two of them buried Spencer's body, Hatt lit a large fire in the fire pit. Fincher saw Hatt pouring liquid from a one-gallon jug into the fire pit. Hatt told Fincher not to breathe the smoke because he was putting acid on the fire.

         When Espy and Hoy returned to the property about 45 minutes after leaving, there was a fire burning in the fire pit. Hoy heard Hatt tell Espy that he was sorry for putting her in that situation but something had to be done. She heard him say he had shot Spencer for robbing his house. The fire in the fire pit burned for three days.

         Fincher eventually informed the Snohomish County Sheriff's Office of what had happened. Detectives obtained a search warrant for the property and discovered Spencer's body in the fire pit.

         The medical examiner, Dr. Daniel Selove, recovered a bullet from Spencer's head and determined that he had been killed by a shot to the forehead. Dr. Selove also noted what appeared to be a bullet hole in the right upper arm or shoulder area of Spencer's clothing and another in the right upper back of the garments. Due to the accelerated decomposition of Spencer's body caused by the fire, Dr. Selove was not able to identify a bullet hole in the skin of the right shoulder. He could not identify a bullet wound from the bones or remaining tissue in that location. He did identify a slit injury about half an inch or smaller on Spencer's front right shoulder. Dr. Selove noted that this was not characteristic of a gunshot entrance wound, although gunshot exit wounds sometimes appear as slits. He could not say what caused the wound or whether it occurred postmortem or while Spencer was dying. X ray images of Spencer's chest showed a sliver of metal in his chest, "not sufficiently large or of the shape to say that it is a bullet but suggestive that a bullet left a fragment somewhere in the-in the chest/trunk part of the body."

         Hatt was charged with first degree murder (firearm allegation), second degree murder (firearm allegation), unlawful possession of a firearm in the second degree, possession of an unlawful firearm, intimidating a witness (firearm allegation), and two counts of tampering with physical evidence. At trial, Hatt argued that he had acted in self-defense and defense of another.

         Hatt testified that he was familiar with Spencer's reputation in the community and his reputation was that "[h]e wasn't anybody to mess with." He described a number of confrontations that he or other members of the community had had with Spencer, including an incident in May 2015 when Spencer punched Hatt at a gas station. Hatt left town that night, and when he returned, his house had been burglarized and vandalized. A picture was torn off the wall and there was a swastika drawn on the wall and writing that said, "go home, Jew." Hatt did not know who had vandalized the house but came to believe that it was Spencer when Spencer yelled at him about a month later, "I thought I told you to leave, Jew." He encountered Spencer at another gas station and asked him if he would come out to the property to talk. Spencer responded, "Well, I'll be out at your property sometime. You just won't know when." Hatt took this as a threat. He heard from someone else that Spencer was "waiting to bury" him if he went to Spencer's house.

         When Spencer came to the property on Halloween, he indicated to Hatt that he was there to work out the issue of the burglary. Hatt said no one was on the property when Spencer arrived, although Stamey and Sycks pulled up less than an hour later. As he was leaving, Spencer asked if a trailer on the property was Fincher's. Spencer mentioned something about Fincher being a snitch. Hatt said he and Spencer shook hands, but he asked Spencer not to return to the property.

         Hatt testified that he was worried and scared when Stamey called to tell him Spencer was coming to the property. From what he knew of Spencer, Hatt believed he would be armed. Hatt opened the window to tell Fincher that Spencer was coming and saw Spencer getting out of his car. He saw Spencer approach Fincher with his left hand in the pocket of his hoodie. Fincher and Spencer looked like they were about to shake hands, but Spencer pulled Fincher toward him and hit him with his left hand. Hatt testified that he thought Spencer had a gun in his left hand and had pistol-whipped Fincher. He saw Fincher go down and went to his safe to retrieve a gun. Hatt turned on the television that showed a live feed from the outside security cameras. On the screen, he could see Fincher scrambling on his hands and knees toward the stairwell while Spencer continued to punch and kick him.

         Hatt ran out the door to the exterior stairwell and saw Spencer kick Fincher in the side while Fincher was on the ground. He saw a lot of blood on Fincher. Hatt still thought Spencer had a gun in his left hand that was aimed down, so he started yelling, "Hey, hey, hey, hey, hey," as he came down the stairs. Spencer turned toward Hatt, and Hatt fired a shot in the air. Hatt testified that Spencer got an angry look on his face, took a step toward him, and seemed to be raising his left hand. Hatt fired a second shot at Spencer. After Spencer went down, Hatt moved to kick the gun out of his hand and realized that Spencer had a black glove on his left hand and was holding a black metal bar about one inch in diameter and four to six inches long. Hatt testified that he was not thinking of the burglary when he shot Spencer and had assumed the two of them had resolved their issues when they talked on Halloween. Hatt asked Fincher if he was all right and said Fincher seemed "punchdrunk."

         After Espy and Hoy left to drive Lowenberg home, Hatt said he did not consider calling the police because he was afraid that he would go jail. He also said he was worried about retaliation from Spencer's family or associates. Hatt confirmed that he believed Spencer had burglarized his house in the spring of 2015 and stolen around $40, 000 worth of property.

         Hatt proposed a jury instruction explaining that homicide is justifiable when committed in lawful defense of the slayer or another in the slayer's presence. The trial court gave the proposed instruction and also instructed the jury that self-defense is not available as a defense when the defendant's actions provoked or commenced the confrontation with the victim.

         The jury found Hatt guilty of murder in the first degree, unlawful possession of a firearm in the second degree, possession of an unlawful firearm, and one count of tampering with physical evidence. The jury found him not guilty of the second count of tampering with physical evidence. The jury also found that he was armed with a firearm at the time he committed the murder. Hatt was sentenced to a total term of confinement of 434 months. The court imposed a $200 criminal filing fee as part of the judgment and sentence. Hatt timely appealed.

         DISCUSSION

         I. Suppression of Evidence

         Hatt contends that the trial court erred in denying his motion to suppress evidence procured while sheriff's deputies executed a search warrant. He argues that the warrant was not constrained by sufficient particularity and the deputies exceeded the scope of the warrant. He specifically assigns error to three of the trial court's findings of fact and one conclusion of law.

         We review de novo a trial court's conclusions of law relating to suppression of evidence. State v. Winterstein, 167 Wn.2d 620, 628, 220 P.3d 1226 (2009). Appellate courts review findings of fact for substantial evidence. Id. "Substantial evidence exists where there is a sufficient quantity of evidence in the record to persuade a fair-minded, rational person of the truth of the finding." State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). Unchallenged findings of fact become verities on appeal. State v. Gaines, 154 Wn.2d 711, 716, 116 P.3d 993 (2005).

         A. Findings of Fact

         Hatt contends that the court erred in entering three findings of fact that characterized the deputies' actions at the property as "processing" the fire pit. He argues that the word "processing" "implies mere routine handling of matters and material within the warrant's authority," but does not apply to this situation, where officers "dug into the ground on real property . . . and searched for a body." The State defines "process" as "subject to examination through a series of steps." To "process" may also mean "to subject to a particular method, system, or technique of preparation, handling, or other treatment designed to effect a particular result." Webster's Third New International Dictionary, 1808 (3d ed. 2002). To "search" means "to look into or over carefully or thoroughly in an effort to find something." Id. at 2048.

         The unchallenged findings of fact are treated as verities on appeal. The trial court found that the Snohomish County Sheriff's Office obtained a warrant to search the property where Hatt resided after Fincher told officers that Hatt had killed Spencer and buried him on the property. Detectives searched the property and found what they believed might be skin and dark hair in the fire pit. They then found what appeared to be a rib bone in the fire pit. Doctors from the Snohomish County Medical Examiner's Office arrived at the property and exhumed Spencer's body from the fire pit. There is sufficient evidence in the record to persuade a fair-minded, rational person that the detectives examined the fire pit through a series of steps or looked into it thoroughly in an effort to reveal evidence. Regardless of any connotation, the court did not err in finding that the detectives were "processing" the fire pit.

         B. Conclusion of Law

         Hatt next contends that the court erred in concluding that the search of the fire pit was permissible. The trial court's first conclusion of law stated: "The sheriff's office did not exceed the scope of the warrant. The warrant did permit the sheriffs to dig through the fire pit. The fire pit was an 'item' that could be searched. There was nothing in the warrant that precluded the police from digging in the fire pit." Hatt argues that the officers executing the warrant exceeded the scope of the warrant when they disturbed the soil in the fire pit because the warrant did not state this place to be searched with particularity.

         The warrant authorizes the search of the .083-acre property where Hatt resided, which contained "a single family residence and numerous detached sheds, outbuildings and various operable and apparently inoperable recreation vehicles or like items used by 'squatters.'" Officers were instructed to seize, among other things:

Any and all firearms in their various forms . . .
All ammunition, bullets, bb's, pellets or cartridges both fired and unfired which is identified as a projectile whose purpose is to be fired from a firearm or similarly styled item . . .
Trace evidence to include: blood, skin, fingerprints, tissue or other biological material located for the collection and comparison to the victim and/or suspect and ANY items containing the same.
Rags, clothes, towels, containers and/or like items commonly utilized to clean, conceal, destroy or otherwise alter blood, tissue or other biological material or items such as lye, lime, acids or other chemicals or items of similar substance and their respective containers. Digging equipment or other tools which could be used to disturb soil, excavate soil or disrupt soil or vegetation.

         The warrant specified that "[t]he authorization extends to all locked, sealed or otherwise located items that may require damaging in order to gain access."

         1. Particularity

         Hatt argues that the warrant was invalid in its entirety because it did not meet the particularity requirement of the Fourth Amendment. We review de novo whether a warrant is sufficiently particular to satisfy the demands of the Constitution. State v. Perrone, 119 Wn.2d 538, 549, 834 P.2d 611 (1992).

         The Fourth Amendment requires that warrants describe with particularity the places to be searched and the persons or things to be seized. U.S. Const, amend. IV. This requirement is intended to prevent general searches, "seizures of objects on the mistaken assumption that they fall within the issuing magistrate's authorization," and "the issuance of warrants on loose, vague, or doubtful bases of fact." Id. at 545. The court interprets search warrants "in a commonsense, practical manner, rather than in a hypertechnical sense." Id. at 549.

         a. Place to be Searched

         A warrant adequately describes a place to be searched when "the officer executing the warrant can, with reasonable care, identify the place intended." State v. Cockrell, 102 Wn.2d 561, 570-71, 689 P.2d 32 (1984). A street address or legal description of the property is sufficient to identify the place to be searched. See id. at 569. In one instance, we upheld a warrant authorizing a search of 60 acres of real property. See State v. Christiansen, 40 Wn.App. 249, 251, 253, 698 P.2d 1059 (1985). "A warrant to search a specific tract of real property necessarily authorizes a search of parts of that property." Id. at 253-54.

         In this case, the warrant specified the correct street address of the .083-acre property where Hatt lived as the property to be searched. Officers executing the warrant were able to identify the property. Because a warrant for the search of real property authorizes a search of parts of the property and the fire pit was part of the property, the fire pit was included in the place to be searched and did not need to be separately designated. The warrant described the place to be searched with adequate particularity.

         b. Items to be Seized

         We next consider whether the warrant described the items to be seized with adequate particularity. Hatt's chief objection to the language of the warrant seems to be that the warrant authorized a search for "trace ...


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