State v. Hurn
| Decision Date | 07 December 2015 |
| Docket Number | No. 71813-4-I,71813-4-I |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. CHAD WAYNE HURN, Appellant. |
UNPUBLISHED OPINION
DWYER, J. — Chad Hum was convicted as charged on 13 counts. On appeal, he contends (1) that the trial court improperly admitted four types of ER 404(b) evidence, (2) that the trial court erred by refusing to sever the charges against him into three "clusters" to be tried separately, (3) that insufficient evidence supports the jury's verdict of guilt on the assault in the second degree charge, and (4) that his Miranda1 rights were violated when he was questioned after, he asserts, he invoked his right to have counsel present during custodial interrogation.2 Finding no error, we affirm.
On February 19, 2013, just after 1:00 a.m., 20-year-old Karla Barnhardt accepted a ride from a friend to deliver her ex-boyfriend's belongings to his new residence and obtain heroin from him. When she was dropped off, Barnhardt realized that she had the wrong address. Her friend, who was rushing for a ferry, declined to take her to the correct location. Stranded with bags containing her ex-boyfriend's belongings, Barnhardt called Hum for help.
Hum, 35 years old, lived nearby and arrived about five minutes later with a girl who was approximately 15 years old, later identified as B.B. Hum was driving a silver, two-door Acura with a sunroof, which Barnhardt had never seen before. He usually drove a red Jeep Cherokee. Barnhardt loaded her bags into the car and sat down. When she told Hum that she did not want to go home but, rather, to her ex-boyfriend's home, Hum demanded money for the ride. Barnhardt had no money but indicated that her friend would pay him. Hum nevertheless refused to give her a ride. Although Barnhardt begged not be stranded in the middle of the night, Hum told her to "get the fuck out of the car" and started throwing her bags out of the car. As Barnhardt was trying to get her things together to exit the car, Hum pulled out a gun, said "I'm not fucking around," and shot the gun through the open sunroof. Terrified, Barnhardt rushed out of the car, which then sped off.
Barnhardt sat on the sidewalk, sobbing loudly. A neighbor was awakened by the gunshot and Barnhardt's crying and called 911. Police responded within a few minutes.
Officer Taralee San Miguel3 arrived at the scene and observed Barnhardt sitting on the curb with several large bags, looking distraught. Barnhardt identified herself as "Destiny Coral" and initially denied hearing or having anything to do with a shot being fired. Barnhardt never gave San Miguel her true name but did eventually report what had happened with Hum and the gunshot. San Miguel collected a single shell casing from the middle of the road.
Barnhardt entered the police vehicle and San Miguel, with Barnhardt's assistance, located Hum's apartment complex. San Miguel broadcast the address over the radio. Officer Brett Willet responded to the address and encountered Hum near a silver Acura and red Jeep Cherokee. San Miguel brought Barnhardt to the scene, and Barnhardt positively identified Hum.
Willet arrested Hum. During the arrest, Hum asked Willet to retrieve from his wallet a piece of paper entitled "Notice to Arresting Officer With Miranda Warning." The document purported to identify its bearer as a "Civil Rights Investigator" who "does not waive any of his rights, including the right to personal time and property, at any time." Hum insisted the officer sign the document as the "Belligerent Claimant." Officers present at the scene of the arrest were confused as to the meaning of the document but concluded that it was not an invocation of the right to counsel or the right to silence.
Willet fully advised Hum of his Miranda rights. Hum stated that he understood his rights and did not ask for counsel or articulate a preference to remain silent. Willet did not question Hum substantively at the scene but, instead, drove him to the precinct.
At the precinct, Willet inventoried Hum's belongings while Hum was in a holding cell five or six feet away. Hum was able to see and hear the officer from his cell. In Hum's wallet, Willet found an IRS tax refund check in the amount of $3,526 made out to Alexander Gregory. When Willet showed the check to Officer Heller, Hum exclaimed, "I found that!"
The investigation continued with warrant-authorized searches of Hum's home, the silver Acura, and Hum's property at the jail. In a laptop case at Hum's home, detectives located a silver .25 caliber pistol, which was later found to have fired the casing that San Miguel found near Barnhardt. Detectives learned that the pistol had been reported stolen along with the blue Jeep Wrangler in which it had been stored by its owner. Detectives also discovered a number of forged Washington State identification cards, some bearing Hum's photo with other names printed thereon and others bearing a photo of 15-year-old B.B. with other names set forth. One of the forged driver's licenses with Hum's picture had the name Alexander Gregory; another had the name Igor Zanine. Additionally, detectives found a Social Security card and driver's license in the name of Lance Elliott. In the silver Acura, which police determined had been stolen from Adhanom Legesse, police found a bag of stolen mail addressed to 25 different people including Gregory and Legesse, several loose license plates, a stolen checkbook in the name of Dustin Gentry, and multiple shaved keys of a type used for auto theft.
Detectives eventually located 15-year-old B.B., who said she was with Hum when he stole the Acura, the blue Jeep, a blue Subaru, and other cars. B.B. stated that Hum used shaved "jiggler" keys to access the cars and swapped license plates on the stolen cars to avoid detection. B.B. stated that she and Hum also stole mail from mailboxes and recalled that Hum was excited to cash a stolen IRS check. B.B. also described going to a Verizon store with Hum, where they presented forged ID cards in obtaining a service contract in the name of Igor Zanine, two iPhones, and a mobile hotspot ("Jetpack").
B.B. described her relationship with Hum. She had met him while trying to buy methamphetamines. The two began to spend time and use drugs together almost every day. Although Hum was a married man in his thirties and knew that B.B. was only 15, he frequently made sexual comments to her, rubbed her thigh while he gave her driving lessons, and had once bitten one of her buttocks. He was angry when he found out that B.B. had a boyfriend. As with Barnhardt, Hum threatened B.B. when he was angry. B.B. later recounted, He also hit her.
At trial, Legesse testified that his 1997 two-door Acura was stolen in February 2013. Police recovered the car two months later. Different license plates had been mounted on the car, which also contained property that had not been there when it was stolen, including an orange safety vest, loose license plates, a checkbook, a knife, a gun holster, credit cards, a Verizon Jetpack, a bag of mail belonging to others, a set of shaved keys, and items associated with Alexander Gregory.
Lance Elliott testified at trial that he had given Hum his driver's license, Social Security card, and bank statements when hiring Hum's "Rent-a-Pad" apartment locating service. When detectives searched Hum's home, they found a forged driver's license and Social Security card in Elliott's name.
Igor Zanine also testified at trial. He did not know Hum and had not given him permission to use his identity. Police found a forged driver's license and Social Security card in Zanine's name in the laptop case in Hum's apartment. Hum had utilized these documents to open a Verizon cell phone account.
Joey Otten testified that her blue Jeep Wrangler was stolen in February 2013. Otten kept her .25 caliber pistol in a locked gun safe in the Wrangler. She testified that when she recovered the Wrangler, the console box had been damaged and the lock destroyed. Detectives found Otten's pistol in the search of Hum's home and confirmed that it was the gun that Hum had shot out of the Acura's sunroof. A partial palm print lifted from inside the Wrangler was a positive match for Hum.
Dustin Gentry's blue Subaru Impreza was also stolen in February 2013. Gentry's checkbook was in the car when it was stolen. This checkbook was later found in the silver Acura. A check from the book had been made out to Rebecca Fisher, the name on one of the forged driver's licenses bearing B.B.'s picture.
By amended information, the State charged Hum with assault in the second degree, unlawful possession of a firearm in the first degree, possessing a stolen firearm, three counts of possession of a stolen vehicle (PSV), making or having vehicle theft tools, three counts of identity theft in the second degree, tampering with a witness, communication with a minor for immoral purposes (CMIP), and intimidating a witness. Before trial, Hum moved to sever the counts into three "clusters" of charges to be tried in three separate trials. The State opposed severance. The trial court denied the motion. Hum renewed his motion to sever during trial, and the trial court adhered to its ruling.
One of Hum's fellow inmates, Jaylyn Johnson, testified at trial that Hum asked for his assistance in ensuring that B.B. did not show up for trial. Hum, who was acquainted with Johnson's uncle, said to Johnson, Hum also told Johnson that he "ha[d] a lot of people on the outside" and, if B.B. participated in the trial and he was convicted, "she'd not be walking around." Johnson...
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