State v. Hatt

• Decision Date: 18 November 2019
• Docket Number: No. 77117-5-I,77117-5-I
• Citation: 452 P.3d 577
• Parties: The STATE of Washington, Respondent/Cross-Appellant, v. George Donald HATT, Jr., Appellant/Cross-Respondent.
• Court: Washington Court of Appeals

452 P.3d 577

The STATE of Washington, Respondent/Cross-Appellant,

v.George Donald HATT, Jr., Appellant/Cross-Respondent.

No. 77117-5-I

Court of Appeals of Washington, Division 1.

FILED: November 18, 2019

Gregory Charles Link, Oliver Ross Davis, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Appellant.

Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, J. Scott Halloran, Snohomish Co. Prosecuting Atty.-Criminal, 3000 Rockefeller Ave. # Ms504, Everett, WA, 98201-4046, for Respondent.

PUBLISHED OPINION

Hazelrigg-Hernandez, J.

¶1 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

¶2 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.

¶3 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.

¶4 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.

¶5 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."

¶6 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.

¶7 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."

¶8 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."

¶9 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.

¶10 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.

¶11 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.

¶12 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.

¶13 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."

¶14 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.

¶15 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.

¶16 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...