State v. Mierz
| Citation | 127 Wn.2d 460,901 P.2d 286 |
| Decision Date | 24 August 1995 |
| Docket Number | No. 61930-1,61930-1 |
| Court | United States State Supreme Court of Washington |
| Parties | , 50 A.L.R.5th 921 STATE of Washington, Respondent, v. John Paul MIERZ, Petitioner. |
Williams, Kastner & Gibbs, David H. Smith, Daniel W. Ferm, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Francis D. Zavatsky, Deputy, Seattle, for respondent.
The present case arises out of John Paul Mierz's unlawful possession of two coyotes and his assault upon Department of Wildlife agents (Wildlife agents) who entered his yard without a warrant to seize the coyotes. On rather convoluted facts, we must decide a number of issues, but the most pressing is whether a person confronted with an allegedly unreasonable search or seizure may assault law enforcement officers and then rely on the exclusionary rule to foreclose admission of evidence pertaining to the assaultive behavior. Because exclusion of the evidence of violent behavior would only license attacks upon law enforcement officers performing their duty, we uphold the Court of Appeals' decision affirming Mierz's convictions for assault and unlawful possession of wildlife.
1. Did Mierz waive any error relating to evidence illegally gathered?
2. Did the agreement to try the case on stipulated facts violate Mierz's rights under CrR 4.2?
3. Did the trial court improperly deprive Mierz of the claim of self-defense?
4. Did Mierz receive ineffective assistance of counsel?
5. Was Mierz improperly charged with and convicted of third degree assault under RCW 9A.36.031(1)(g)?
6. Was Mierz's conviction for possession of wildlife proper under RCW 77.08.010(16) and RCW 77.16.040 if the coyotes were domesticated?
In 1989, Mierz found two coyote puppies. He took them home and kept them with his dogs in his back yard, which was enclosed by a 6-foot chain-link fence.
Upon learning that State law requires a permit to collect, transport or possess wildlife (see RCW 77.16.040; RCW 77.32.010), Mierz requested a scientific permit from the Department of Wildlife (Department), stating he would display the coyotes to the public. 1 Subsequently, about 20 persons viewed the coyotes in Mierz's yard. In late 1990, the Department denied Mierz's permit application, finding that Mierz unlawfully kept wildlife. Mierz appealed the decision. Subsequent to the events in this case, the Director of the Department denied Mierz's appeal, noting his lack of training, and his failure to obtain a permit before collecting the coyotes. Clerk's Papers, at 194, 201. Mierz apparently did not seek review of the Director's decision.
In late 1990, Mierz also announced on local television that he would put the coyotes in "sanctuary" on the Yakama Indian Reservation to avoid their confiscation by the Department. Agent Michael Krenz viewed the television program on which Mierz made his announcement. Another agent, James Suda, lived in Mierz's neighborhood, and could see the coyotes when he drove by Mierz's home. After the television program, Krenz and Suda did not see the coyotes in Mierz's yard again until spring of 1991.
Believing Mierz to unlawfully possess the coyotes, Krenz and Suda set out on July 16, 1991, to take the coyotes. They were accompanied by a wildlife rehabilitation specialist experienced in handling coyotes, who could help them cage and take the coyotes to a licensed wildlife rehabilitation center. 2
At his door, the Wildlife agents asked Mierz if he had a permit. He did not, but invited them in to see a Departmental letter permitting him to keep the coyotes and to telephone the Department in Olympia to verify that he had been told he could keep the coyotes while his appeal was pending. The agents found the letter was from Mierz's attorney, and could not reach any Department contact to verify Mierz's claim. Mierz then told them to leave the property, which they did.
From a neighbor's yard, the agents again told Mierz they did not need a warrant and again asked for his help in caging the coyotes, who were running loose in the yard with the two dogs. Mierz pretended to help by catching the coyotes, but started to put them in the house. Krenz told Mierz to put them in the kennel. Mierz did so, but locked the gate and threw away the key.
Krenz then came over the fence into the yard, with Suda close behind. As the agents came in, Mierz yelled "attack them, attack them, attack them." Clerk's Papers, at 173. The larger dog, a Husky mix, bit Suda on the leg and drew blood. Krenz took Mierz by the arm and tried to arrest him for obstructing an officer; Mierz went "berserk." Clerk's Papers, at 168. Mierz continued to yell and struggle while Krenz peeled his fingers from the fence, and brought him to the ground. King County Police and Washington State Patrol officers arrived to assist. When Krenz tried to put Mierz in a car, Mierz bit Krenz on his hand. Suda went to the hospital. Another agent and the wildlife specialist took the coyotes to the wildlife center.
Mierz was thereafter charged with unlawful possession of wildlife and two counts of third degree assault under RCW 9A.36.031(1)(g). Before trial, Mierz's lawyer 3 indicated he would seek suppression of illegally obtained evidence, but never filed a motion to suppress. He also stated that Mierz asserted "self-defense," Clerk's Papers, at 12, 20, but made it clear that Mierz relied only upon defense of his property, i.e., the coyotes, and not self-defense against bodily harm: 4
THE COURT: As I understand it, your defense to the two assault counts is predicated on the fact that he was defending property [i.e., the coyotes] that he was entitled to believe was his own, correct?
Is there any other defense that you're raising in regard to those two assault counts?
MR. DANKO: No, outside of the force used was reasonable.
The State moved in limine to bar any opening statement or argument supporting Mierz's claim of self-defense. The trial court found that Mierz had no right to defend the coyotes because he had no right to possess them, and barred the argument that Mierz was entitled to use "self-defense" to protect the coyotes. 5 The court also barred mention during voir dire or opening argument that Mierz considered the arrest illegal, reserving its ruling on that issue.
A jury was impaneled, but after the wildlife specialist testified to the events at Mierz's home, Mierz's trial counsel informed the court that because of the court's pretrial rulings, Mierz wished to have a stipulated facts trial. The trial court verified on the record that Mierz understood that the court, not a jury, would determine the facts, and the State's findings of fact and conclusions of law were acceptable to Mierz. Report of Proceedings, at 97-105. Mierz waived the right to a jury in writing. Clerk's Papers, at 65; Report of Proceedings, at 102.
The facts to which Mierz, his trial counsel and the State stipulated were that (1) on July 16, 1991, Mierz had two animals identified as coyotes in his yard in Renton, King County; (2) that he lacked any permit; (3) that his appeal of the Department's denial of his request for a permit was pending; (4) that Mierz did not want the agents to remove the animals, and after "appearing to cooperate" with the agents, he padlocked the animals in a pen; (5) the agents responded by entering his backyard, Suda heard Mierz shouting, "attack, attack," and was bitten by one of Mierz's dogs, and Krenz was bitten by Mierz while subduing him; and (6) that the agents took custody of Mierz and removed the animals. Clerk's Papers, at 211.
In an abundance of caution, the trial court decided to review independent information on the question of Mierz's guilt. Report of Proceedings, at 103. Counsel stipulated to the admission into evidence of copies of the Department's decision, statements of the agents, other law enforcement officers and the wildlife specialist, and medical records of Suda's injury. Report of Proceedings, at 103-05. After a recess to review the information, the trial court found Mierz guilty of one count of unlawful possession of wildlife and two counts of third degree assault. Report of Proceedings, at 106-07.
Mierz subsequently obtained new counsel and moved for a new trial and to modify the findings. The trial court denied the motion for a new trial, but entered slight modifications of the findings. The Court of Appeals affirmed Mierz's convictions in State v. Mierz, 72 Wash.App. 783, 866 P.2d 65, 875 P.2d 1228 (1994). We affirm the decision of the Court of Appeals.
Mierz did not move below to suppress evidence he claims was illegally obtained as a result of the Wildlife agents' warrantless entry upon his property. He raised this issue for the first time on appeal. Mierz, 72 Wash.App. at 789, 866 P.2d 65. Mierz's failure to move to suppress evidence he contends was illegally gathered constitutes a waiver of any error associated with the admission of the evidence and the trial court properly considered the evidence. Mierz, at 789, 866 P.2d 65.
Mierz next contends that he was deprived of due process when he was tried on stipulated facts without the protections afforded to those who plead guilty. CrR 4.2. He also argues that he never submitted a written waiver of his right to trial by jury. CrR 6.1. Both contentions lack merit.
First, the record plainly discloses that Mierz signed a written waiver of a jury trial. Clerk's Papers, at 65.
Second, there was a true stipulated facts trial here as the trial court independently reviewed the evidence and made its own findings of fact. In State v. Johnson, 104 Wash.2d 338, 705 P.2d 773 (1985), we ruled that a stipulated facts trial is different from a guilty plea. A guilty plea obviates need for a trial. A stipulated facts trial is still a trial of the defendant's guilt or innocence. In a stipulated facts trial,...
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