State v. Hahn

• Decision Date: 03 August 2011
• Docket Number: No. 40062–6–II.,40062–6–II.
• Parties: STATE of Washington, Respondent,v.Aaron Michael HAHN, Appellant.
• Court: Washington Court of Appeals

162 Wash.App. 885
256 P.3d 1267

STATE of Washington, Respondent,
v.
Aaron Michael HAHN, Appellant.

No. 40062–6–II.

Court of Appeals of Washington, Division 2.

Aug. 3, 2011.

[256 P.3d 1270]

Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Appellant.Brian Patrick Wendt, Clallam County Prosecuting Attorney's Of., Port Angeles, WA, for Respondent.WORSWICK, A.C.J.

[162 Wash.App. 888] ¶ 1 Aaron Hahn appeals his conviction for solicitation to commit first degree murder. He argues that (1) the information failed to charge a crime and violated his right to notice, (2) statements he made to police were obtained in violation of his right to counsel, (3) the trial court erred in refusing to instruct the jury on the lesser included offense of solicitation of fourth degree assault, (4) the State offered improper opinion testimony, (5) he received ineffective assistance of counsel, and (6) the criminal solicitation statute is unconstitutionally overbroad. Holding the trial court erred by failing to give a lesser included offense instruction, we reverse and remand.

FACTS

¶ 2 Hahn had a multiyear sexual relationship with S.M., an underage girl. On March 24, 2008, Hahn was charged with four counts of third degree child rape, sexual exploitation of a minor, processing depictions of minors engaged in sexually explicit conduct, and stalking. At his arraignment, the trial court appointed an attorney to represent him.

¶ 3 While in custody, Hahn had his mother send several emails to S.M., encouraging her to drop the charges against him. After that proved unsuccessful, Hahn began talking with other inmates about his situation and eventually asked Michael Hendricksen if he knew anyone who could “get to” S.M. Report of Proceedings (RP) (Oct. 28, 2009) at 92. Hendricksen told Hahn that he did not know anyone who could hurt S.M., so Hahn asked another inmate, Norman Livengood, if he had any mafia connections. After [162 Wash.App. 889] talking about it for a few days, Livengood became concerned that Hahn was serious and contacted Sergeant Jeff Finley at the jail. Sergeant Finley contacted the Sequim Police Department to report what he had heard from Livengood.

¶ 4 Soon thereafter, Sequim Police Department Detectives Kori Malone and Cory Hall met with Livengood. Livengood told the detectives about Hahn's interest in hiring someone to murder S.M. Livengood agreed to wear a wire to record future conversations with Hahn. After the detectives obtained a warrant for the recording, they provided a wire and a phone number to Livengood to give to Hahn so he could call Detective Mike Grall, who would act as a hit man named “Miguel.” RP (Oct. 13, 2009) at 73–87. On May 21, 2008, Hahn and Livengood then engaged in the following exchange regarding additional details:

....

[Livengood]: Hey, whenever I call him.

[Hahn]: Yeah.

[Livengood]: What if he asks me what you, what, what, what exactly you want done.

[Hahn]: I thought you already f- - -ing, I thought that he already told you that he was going to ... I thought you already told me he knew.

[Livengood]: Yeah, but he might want to know exactly what you want done.

[Hahn]: I want her to disappear.

[Livengood]: I can't hear you, dude.

[Hahn]: I want her to disappear.

[Livengood]: That's easy enough I guess.

[Hahn]: Disappear, make it look like she didn't exist.

....

[Hahn]: Make it look like she never existed.

....

[Livengood]: You just want her to disappear?

[Hahn]: Just say that, yep.

....

[Hahn]: That's discreet enough that the cops won't figure it out but he'll know what I'm talking about.

....

[162 Wash.App. 890] Exhibit (Ex.) 41 at 6, 13.

¶ 5 The next day, on May 22, Livengood provided Hahn with a phone number for “Miguel” and told him to call to discuss the

[256 P.3d 1271]

details. Later that day, Hahn called “Miguel”:

[Hahn]: Hello.

[Miguel]: Hello.

[Hahn]: Is this Miguel?

[Miguel]: Yes.

[Hahn]: Okay, hey, and this is Aaron.

....

[Miguel]: I think I have everything I need[.]

[Hahn]: Okay.

[Miguel]: Ah, there's just a few, ah, few things that I need to know if there's anything specific that you needed or wanted.

[Hahn]: Um, not really, no, ah, I kind of just trust however you, you think you want to get it done.

[Miguel]: Alright, um what about, you know, I'll, I'll get the, I'm gonna, I'm gonna give her a present that you wanted, I didn't know how you wanted it, whether you wanted your name attached to it or, so she knew who it was from, or did you just want it anonymously?

[Hahn]: Just, ah, put it anonymously.

[Miguel]: All right. That's, ah, not a problem. What about, ah, I got the notes and everything and just want to make sure that that's going to be followed through on your end once it's ah, once I get the gift delivered.

[Hahn]: It will be, yes.

....

[Miguel]: All right, um, what about confirmation, how do you want confirmation once, ah, the gift has been delivered?

[Hahn]: Um, can you do like some sort of discreet letter?

[Miguel]: From me or from her?

[Hahn]: Um, from you.

[Miguel]: Okay, yeah, I can get that, you'll know who it's from when you get it.

....

[162 Wash.App. 891] [Hahn]: Um, when do you think it'll be taken care of?

[Miguel]: Well, how soon, um, are you interested in me getting it there?

[Hahn]: The sooner the better.

[Miguel]: Okay.

[Hahn]: I mean if we can do, if we can do, do something by the, ah, by the end of the month that would be great.

....

[Hahn]: Yeah, just so long as it's done by, by about the, ah, beginning of, of, ah, next month.

[Miguel]: Okay, what's going on, Is there something going on with you that the time line Is going to be affected?

[Hahn]: Um, just, Ju–June 9th I gotta get it, gotta get it taken care of by then.

....

Ex. 52.

¶ 6 Then on May 23, 2008, Sergeant Sean Madison and Detective Hall went to the Clallam County Jail where Hahn was located to let him know that, based on the new evidence, they would be charging him with solicitation of first degree murder. The officers did not ask Hahn any questions at that time and left the jail. After the officers left, Hahn told Sergeant Matt Blore at the jail that he wanted to speak to the officers. But when Sergeant Blore contacted them to pass this message along, the officers refused, stating that they would not speak with Hahn without his attorney.

¶ 7 Apparently Hahn did not take no for an answer and again reiterated his desire to talk to the officers, even without his attorney. Sergeant Blore again contacted the officers and passed this message along. As a result, the officers returned to the jail to speak with Hahn. The officers read Hahn his Miranda ¹ rights, which he explicitly [162 Wash.App. 892] waived. Hahn also agreed to have the interview recorded. Throughout the interview, Hahn acknowledged talking with “Miguel” and other inmates, but he adamantly denied any interest in having S.M. killed. Instead, Hahn insisted that he “did not want her dead,” that the call to Miguel “was not about murder,” and that all he originally thought was that Miguel would “maybe just scare her.” Ex. 46.

[256 P.3d 1272]

¶ 8 On May 27, 2008, the State charged Hahn with solicitation of first degree murder. The first amended information in this case, filed on September 21, 2009, provided in relevant part:

On or about the period of time between May 15 and May 22, 2008, in the County of Clallam, State of Washington, [Hahn], with intent to promote or facilitate the commission of First Degree Murder, to-wit: with a premeditated intent to cause the death of another person, to-wit: S.M[.], offered to give or gave money or other thing of value to another to engage in specific conduct which would constitute such crime and or would establish complicity of such person in its commission or attempted commission had such crime been attempted or committed; contrary to Revised Code of Washington 9A.28.030 and RCW 9A.32.030(1)(a), a class A felony.

Maximum Penalty—Life imprisonment and/or a $50,000 fine pursuant to RCW 9A.32.030(2) and RCW 9A.20.021(1)(a), plus restitution and assessments.

Minimum Penalty—Pursuant to RCW 9.94A.540(1)(a), this crime is punishable by no less than twenty (20) years mandatory total confinement imprisonment without availability of furlough, work release, earned release time, or other leave of absence from confinement during such minimum twenty (20) year term except for emergency medical treatment or an extraordinary medical placement under RCW 9.94A.728(4).

....

Clerk's Papers (CP) at 21–22.

¶ 9 The trial court held a pretrial CrR 3.5 hearing on whether to suppress Hahn's statements made to police officers and to Livengood in the jail. The trial court denied Hahn's request to suppress the statements, largely due to his waiver of his right to counsel.

[162 Wash.App. 893] ¶ 10 Several witnesses testified at trial, including Livengood and Hendricksen. The State asked Livengood whether he had any doubt what Hahn wanted to have happen to S.M.:

[STATE]: This is going to be the last one—was there ever any doubt in your mind, Mr. Livengood, specifically what the Defendant wanted to [have] happen to [S.M.] ?

[DEFENSE COUNSEL]: Objection—

[LIVENGOOD]: None whatsoever.

[COURT]: Overruled.

RP (Oct. 26, 2009) at 69. And the State also asked Livengood his opinion on whether Hahn was serious about having S.M. killed:

[LIVENGOOD]: He asked me if I knew of anyone who could—well, he initially asked me if I had any Mafia connections and I said Mexican Mafia just kind of joking around. And he said well—and I said why and he said—he claimed that he wanted to have his victim hurt, or, you know, killed.

[STATE]: Have you ever heard that type of talk before when you've been in jail?

[LIVENGOOD]: Yes, I have.

[STATE]: Is it uncommon?

[LIVENGOOD]: Not at all.

[STATE]: Did you ever do anything about it before?

[LIVENGOOD]: No, ma'am.

[STATE]: Did you this time?

[LIVENGOOD]: Yes, ma'am.

[STATE]: Why, what was different?

[LIVENGOOD]: The difference is that I believe that he was serious with what he was talking about.

RP (Oct....