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.
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
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.
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.
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."
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.
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
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."
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.
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
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.
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
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."
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.
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 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.
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.
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."
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.
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.
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
Suppression of Evidence
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.
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).
Findings of Fact
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.
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.
Conclusion of Law
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.
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.
warrant specified that "[t]he authorization extends to
all locked, sealed or otherwise located items that may
require damaging in order to gain access."
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).
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.
Place to be Searched
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.
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.
Items to be Seized
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 ...