State v. Holtz
| Decision Date | 19 August 2014 |
| Docket Number | No. 43995-6-II,C/w No. 45427-1-II,43995-6-II |
| Court | Court of Appeals of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. RONALD HODGE HOLTZ, aka RONALD HOLTZ KEAL, Appellant. In re Personal Restraint Petition of RONALD HODGE HOLTZ, Petitioner. |
HUNT, P.J. — Ronald Hodge Holtz (aka Ronald Holtz Keal) appeals his jury trial conviction and standard-range sentence for felony violation of a domestic violence, court order. He argues that the trial court's instruction advising the jury that it had a duty to return a guilty verdict if it found that the State had proved each element of the offense beyond a reasonable doubt is not a correct statement of the law. He raises several additional issues in a Statement of Additional Grounds for Review1 (SAG), a supplemental SAG, and a consolidated personal restraint petition (PRP). We affirm his conviction and sentence, and we deny his PRP.
On September 19, 2011, Connie E. Elliott, the desk clerk on duty at the Sunshine Motel in Fife, overheard two people arguing just outside of one of the motel rooms. Elliott recognized the people involved as Clare Jane Strain and Ronald Holtz,2 from previous contacts at the motel. A short time later, Elliott heard more arguing; saw Strain, who uses a cane, back out of the motel room's doorway; and saw Holtz "give [Strain] a shove to the chest." 3 Verbatim Report of Proceedings (VRP) at 263. Elliott called 911.
Fife Police Officer Allen Morales and Milton Police Officer Kevin Peterson responded to the 911 call. The officers contacted Strain and a man they later identified as Holtz. Both Holtz and Strain confirmed that they had been arguing, but they denied any physical altercation.3 After Morales spoke to Elliott in the motel office, the officers arrested Holtz for assault. After arresting Holtz, Morales ran records checks on both Strain and Holtz and discovered a no contact order prohibiting Holtz from contacting Strain.4
The State charged Holtz with felony domestic violence (DV) court order violation and fourth degree assault. Before trial, Holtz was represented by series of attorneys. The trial court also granted numerous continuances over Holtz's objections.
Through counsel, Holtz moved to suppress all the evidence discovered, at the motel, arguing that the officers lacked probable cause to arrest Holtz. Holtz did not argue that the officers had unlawfully searched the motel's guest registry. After the trial court heard testimony from Morales and Elliott, it denied Holtz's suppression motion.
Defense counsel then presented the court with a pro se suppression motion in which Holtz argued that the officers had unlawfully detained him, that they had unlawfully searched the motel's guest registry, and they would not have discovered the no contact order at issue if it were not for this unlawful search. The trial court did not consider this pro se motion, noting that it contained factual statements that were not in the record because Holtz had not testified at the suppression hearing and that Holtz had counsel; instead, the trial court placed the motion in the court record without action. In its written findings of fact and conclusions of law, the trial court addressed only the suppression issue litigated by counsel; it did not address Holtz's pro se motion.
Two days before trial, Holtz moved for bail reduction and release, asserting that he was not receiving adequate medical treatment in jail. During the hearing on this matter, Holtz stated that he had numerous physical and mental health conditions, for which he was on social security disability. Although he described many of his physical problems, he did not describe his mental health issues beyond asserting that he had been treated at "Greater Lakes," that he was "mentally. . . disabled," and that he was not receiving any kind of "treatment" in jail.5 VRP (Aug. 28, 2012) at 6. The trial court denied his motion for bail reduction and release.
On the day of trial, defense counsel advised the trial court that Holtz had requested a continuance to allow him to obtain "a competency evaluation and possibly a diminished capacity evaluation." 1 VRP at 19. Addressing the trial court himself, Holtz again stated that he was physically and mentally disabled and that he was not taking any mental health medication. This time, he also stated that he had "six mental health conditions" and that he had "had nine evaluations" and had had some type of involvement with Western State Hospital.6 1 VRP at 20. The trial court denied this motion.
Before completing jury selection, the trial court notified the parties that it had some brief, unintentional contact with some of the jurors on its way to the courtroom. Neither party expressed concern about this contact.
The State's witnesses testified as described above. Holtz did not present any evidence. The State also presented copies of (1) two Lakewood Municipal Court orders showing that Ronald H. Keal had previously been convicted of violating protection orders, and (2) a copy of a Pierce County Superior Court judgment and sentence showing that Ronald Holtz Keal had pled guilty to violating a protection order. A fingerprint expert testified that the fingerprints on these documents matched the fingerprints taken from Holtz when he was booked on this offense.
Before Morales, Peterson, and Elliott testified, the trial court, at defense counsel's request, allowed the parties to voir dire these witnesses about various matters, including whether Elliott had shown them the motel's registry when they responded to her 911 call. Although the trial court initially considered ruling on additional suppression issues, it later stated that these issues had been addressed by another judge and refused to make any additional rulings.
Following the State's final witness but before the State rested, the trial court addressed several "halftime" motions. 3 VRP at 301. The State rested its case before the jury the following afternoon after the court addressed some additional issues.
Holtz proposed a felony "violation of a no-contact-order to convict" jury instruction that contained the following language: "If you find from the evidence elements (1), (2), (3)[,] (4) and (5), have been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty." Clerk's Papers (CP) at 138. Although the trial court's to-convict instruction, number 10, differed slightly from Holtz's proposed instruction, it stated that if the jury found all of the elements set out in the instruction, "it will be your duty to return a verdict of guilty." CP at 109 (Jury Instruction 10).
The jury found Holtz guilty of felony violation of a DV court order, but not guilty of fourth degree assault. The jury further found by special verdict that Holtz did not violate the no contact order by committing an assault but that he had "twice been previously convicted for violating the provisions of a court order." CP at 131. At sentencing, over Holtz's objection, thetrial court calculated Holtz's offender score as more than nine points. The trial court also denied Holtz's request for a lower sentence based on his numerous mental and physical health issues.7
Holtz appeals his conviction and sentence. He also challenges his conviction and sentence in a PRP, which we have consolidated with his direct appeal.
Holtz first challenges Jury Instruction 10, the to-convict instruction for felony violation of a DV court order. He argues that this instruction misstated the law by advising the jury that it had a "duty to return a verdict of guilty" if the evidence proved all elements beyond a reasonable doubt when there is no such requirement in the State or Federal constitutions.8 Br. of Appellant at 19. The State argues that the invited error doctrine precludes this argument. We agree with the State.
The invited error doctrine "prohibits a party from setting up an error at trial and then complaining of it on appeal." State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984),overruled on other grounds by State v. Olson, 126 Wn.2d 315, 319-21, 893 P.2d 629 (1995). When a defendant has proposed instructions that the trial court gave to the jury, the defendant cannot appeal on the ground that his own proposed instructions were improper, even if the instruction potentially violated his constitutional rights. State v. Henderson, 114 Wn.2d 867, 868-69, 792 P.2d 514 (1990). Here, Holtz proposed a felony violation of a DV court order instruction that contains language identical to the language he now asserts was improper.9 Thus, the invited error doctrine prohibits Holtz from arguing that this to-convict instruction was incorrect, and we do not further consider this argument.10
Holtz next asserts that the officers conducted a warrantless search of the motel's registry, and that the officers would not have discovered the existence of the no contact order if not for this unlawful search. The trial court did not address this issue, which Holtz raised below in a pro se motion to suppress. Nevertheless, the record before us on appeal includes the voir diretestimonies of Morales, Peterson, and Elliott, which allows us to address this issue in the first instance.
During voir dire outside the jury's presence, Morales testified that arriving at the motel before Peterson, he (Morales) contacted Strain in her motel room, she told him her name, he then contacted Elliott in the motel office, but he did not look at the motel's guest registry. Peterson testified that when he arrived, Morales was already speaking to Strain, and he (Peterson) did not go to the motel office. Elliott12 testified that when there were two officers present at the scene, she...
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