State v. Mierz
| Citation | 866 P.2d 65,72 Wn.App. 783 |
| Decision Date | 31 January 1994 |
| Docket Number | No. 31028-3-I,31028-3-I |
| Parties | STATE of Washington, Respondent, v. John Paul MIERZ, Appellant. |
| Court | Court of Appeals of Washington |
Norm Maleng, Pros. Atty., and Francis Drew Zavatsky, Deputy Pros. Atty., Seattle, for respondent.
On April 17, 1989, Mierz found two coyote pups at a construction site. He took them home and raised them in the same manner as his dogs. He kept them in his backyard, which is enclosed by a six-foot chain link fence. Around July 1990, Department of Wildlife (Department) Captain Bill Hermes informed Department Agents Mike Krenz and Jim Suda that Mierz was in illegal possession of two coyotes. The agents were informed that Mierz did not have a permit allowing him to possess the animals as required by state law.
On September 5, 1990, Mierz applied to the Department for a scientific use permit which, if issued, would have allowed him to keep the coyotes. On September 13, 1990, the Department informed Mierz that he could not keep the coyotes without a valid permit and, on November 8, denied his application for a permit. Mierz requested an administrative appeal of the Department's decisions. On July 16, 1991, the date on which the underlying events in this case took place, the appeal was pending. The appeal was ultimately denied on July 31, 1991.
During this time, Agent Krenz saw Mierz interviewed on a news program. In the interview Mierz stated he was taking the coyotes to the Yakima Indian Reservation where the Department would have no jurisdiction. Shortly after the broadcast, Suda and Krenz drove by Mierz' home and did not see the coyotes. Throughout the fall and winter of 1990-91, the agents monitored Mierz' backyard when they were in the area to check for the presence of the coyotes. In the spring of 1991, Suda found out that the coyotes were back on Mierz' property. Suda and Krenz later spoke with a judge and a prosecutor at Aukeen District Court about the need to On July 16, 1991, Suda, Krenz and Bruce Richards, another Wildlife Agent, met with Jeanne Wasserman of the Progressive Animal Welfare Society. They went to Mierz' home and saw the coyotes in his backyard. Suda and Krenz spoke with Mierz at his garage door and informed him that they were there to retrieve the coyotes. The agents asked Mierz if he had a permit. Mierz told them that he did not but that his application was on appeal and it was his understanding that he was allowed to retain the coyotes pending the outcome of the appeal. Mierz invited the agents and Wasserman into his home to call Robin Sherry, the permit biologist at the Department, to verify this claim. Krenz attempted to contact Sherry and two other officials at the Department, but none was available.
have a search warrant to seize the coyotes. They were misinformed that, if the coyotes were in plain view, they could be seized without a warrant. 2
Mierz then ushered the agents and Wasserman outside his house, shut the door behind him and stated: The agents informed Mierz they intended to confiscate the coyotes, and Mierz asked them if they had a search warrant. The agents replied that they did not need one because the coyotes were in plain view. At this point, the agents were standing outside Mierz' fenced yard. They observed him go into the yard, catch the coyotes and put them in their kennel. Mierz later removed the coyotes from the kennel and appeared to be carrying them into his house. Agent Krenz told Mierz to put the coyotes back into the kennel, which he did. Mierz padlocked the kennel and threw the key over his fence.
Krenz then climbed Mierz' fence and entered his backyard. In so doing, he knocked loose a padlock on the gate into the backyard. Suda followed Krenz through the gate into the yard where he was approached by one of Mierz' dogs. Suda reported hearing Mierz command the dogs to attack the agents. Wasserman testified that she heard Mierz yell "get 'em" and "attack."
Krenz approached Mierz and informed him he was under arrest and attempted to take hold of his arm in order to escort him to the agents' car. Mierz began struggling and grabbed onto the chain link fence. Krenz again informed Mierz he was under arrest and attempted to peel his hand off the fence with a finger hold. Suda approached to assist Krenz, and one of Mierz' dogs bit him on the back of the leg. Krenz reported that he heard Mierz command his dog to attack Suda. Mierz was eventually handcuffed and taken into custody. As he was being escorted to the agents' car, he attempted to bite Krenz on the back of his hand. Mierz was also injured in the melee.
Mierz was charged with two counts of assault in the third degree, contrary to RCW 9A.36.031(1)(g), and one count of unlawful possession of wildlife, contrary to RCW 77.16.040 and 77.08.010(16). The State moved pretrial to bar Mierz from arguing that he was acting in self-defense under a reasonable belief that he was entitled to possession of the coyotes in defending the assault charges. This motion was granted.
Mierz' trial began, and the jury heard testimony from one witness, Wasserman. After her testimony, Mierz' attorney and the prosecutor agreed to a stipulated trial based upon all of the police reports related to the case, photographs, medical reports, witness statements and Wasserman's testimony. Mierz waived his right to a jury trial, and the court signed the findings of fact and conclusions of law prepared by the prosecutor and signed by Mierz and his attorney. The court questioned Mierz extensively regarding his understanding of the effect of agreeing to a stipulated trial, and Mierz indicated he Represented by new counsel, Mierz then moved for a new trial, arrest of judgment or, alternatively, for a modification of the findings of fact and conclusions of law. The court denied the motion for a new trial or arrest of judgment and authorized certain revisions in the findings of fact and conclusions of law. This appeal followed.
understood. The court found Mierz guilty as charged. Following the trial, Mierz' attorney withdrew
As a preliminary matter, we note that it is not clear from the parties' briefs whether Mierz' original trial counsel moved to suppress evidence obtained as a result of the agents' entry into his yard. Mierz argues that the trial court should have granted a motion to suppress the evidence as the fruits of an unlawful entry, suggesting that his counsel did move to suppress this evidence. The State asserts his attorney never moved to suppress this evidence. We find no indication in the record that a motion to suppress was brought, and we treat this issue as one raised for the first time on appeal.
RAP 2.5(a) provides that an error of constitutional magnitude may be raised for the first time on appeal. Admission of evidence obtained in violation of either the federal or state constitution is an error of constitutional magnitude. A failure to move to suppress evidence, however, constitutes a waiver of the right to have it excluded, and the trial court does not err in considering evidence that the defendant has not moved to suppress. State v. Tarica, 59 Wash.App. 368, 372-73, 798 P.2d 296 (1990). Because there was no error below, this issue is not properly raised for the first time on appeal as a trial court error. As discussed below, however, this issue is properly considered in the context of whether Mierz received effective assistance of counsel, and we analyze it accordingly.
To establish ineffective assistance of counsel, Mierz must show both that his counsel's performance was deficient and that he was prejudiced by this deficiency. Tarica, 59 Wash.App. at 374, 798 P.2d 296 (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A defendant is prejudiced where counsel's "errors were so egregious that the defendant was deprived of a fair trial". 59 Wash.App. at 374, 798 P.2d 296. In Tarica, we addressed the issue presented here: whether failure to bring a motion to suppress evidence constitutes ineffective assistance of counsel. We held that the first prong of the ineffective assistance of counsel test was met because
[a]s a normal rule, defense counsel brings such a motion anytime there may be a question as to the validity of a search and subsequent seizure. Because the motion is made pretrial and not in front of the jury, there does not appear to be any way to characterize the failure to bring the motion to suppress as a legitimate trial tactic. Therefore, [the defendant's] counsel's performance was deficient.
59 Wash.App. at 374, 798 P.2d 296. We then analyzed the probable outcome of a suppression hearing to determine whether the prejudice prong of the Strickland test was met. We based that determination on the likelihood that such a motion would have been granted. That prong was also satisfied in Tarica because a motion to suppress probably would have been granted had it been brought. 59 Wash.App. at 378, 798 P.2d 296.
Applying the same analysis to the facts of this case, we hold that Mierz' trial counsel's failure to seek suppression of evidence obtained as a result of the agents'...
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