State v. Pink
| Decision Date | 23 September 2003 |
| Docket Number | No. 25327-5-II. Consolidated with No. 27573-2-II.,25327-5-II. Consolidated with No. 27573-2-II. |
| Parties | STATE OF WASHINGTON, Respondent, v. STEVEN E. PINK, Appellant. |
| Court | Washington Court of Appeals |
Appeal from Superior Court of Grays Harbor County Docket No: 99-1-00060-1, Judgment or order under review, Date filed: 10/25/1999.
Stephanie C Cunningham, Attorney at Law, Seattle, WA, Counsel for Appellant(s).
Thomas Edward Doyle, Attorney at Law, Hansville, WA, Counsel for Appellant(s).
Gerald R. Fuller, Montesano, WA, Counsel for Respondent(s).
Steven Pink appeals from his convictions of and sentence on first degree assault while armed with a deadly weapon and conspiracy to commit first degree murder with a deadly weapon, arguing various errors. We affirm.
On January 26 1999, while leaving for work from his Montesano home, Thomas Perrine noticed a beer bottle on top of a box and a shopping bag containing smashed beer cans between his truck and his boat. When he picked up the box, it exploded2 and severely injured him. While being treated at the hospital, Perrine, a community corrections officer (CCO), told police officers that he suspected Pink's involvement.
Hoquiam police officers arrested Pink at about 5:00 p.m. on January 26 on an unrelated matter. Pink had parked his car adjacent to where the police arrested him. The police did not search the car but impounded and secured it at the Hoquiam Police Department. The Montesano Police Department obtained a search warrant for Pink's car on January 27 and conducted a search on January 29.
After his arrest, Pink asked to speak with Grays Harbor Sheriff Detective Douglas Smythe. Pink told Smythe that he knew who committed the bombing and was willing to cooperate if the State dropped all charges against him.
When Smythe asked Pink what bombing he was referring to, he replied `My P.O.,{3} Tom Perrine.' III Report of Proceedings (RP) at 476. Pink told Smythe that an acquaintance named Gary planted the bomb. Pink did not provide Gary's last name but he gave Smythe directions to Gary's house. Pink also gave Smythe Gary's telephone number. The number was listed under Gary Davis.
Pink told Smythe that Gary showed him the bomb in December 1998. At Smythe's request, Pink drew a diagram of the device he saw at Gary's house. According to Smythe, Pink `drew a square box with two round circles in it and some squiggly lines that he was describing as being the nails that were packed at the back of the container, and the two round circles that he indicated were the battery, and the — possibly the detonating device, and he also said there was a detonator in there.' III RP at 482.
In a later interview, Pink admitted that he gave explosives, including TNT, to Gary. Pink also described the detonator. Pink further told the detective that he had shown Davis how to fabricate a bomb from the materials. In another interview, Pink told Grays Harbor Undersheriff Rick Scott that he and Davis planned to shoot Perrine. Pink then denied having anything to do with the bombing.
According to Davis's family friend, Sharon Davidson, Davis built a bomb for Pink approximately one week before the incident. When Davidson and Davis left Davidson's house in her car between 2:30 and 3:00 a.m. on January 26, Davis carried a graham cracker box containing the bomb. He told Davidson that they were going to Perrine's house and that Pink told him to place the bomb on Perrine's car hood.
When they arrived at Perrine's house, Davis left with the box. Davis returned without the box five to seven minutes later. On their way home, Davis had Davidson stop at a convenience store so that he could call Pink and Michelle Lash, Pink's girlfriend.
Lash later testified that she heard Davis tell Pink that he wanted to shoot Perrine with a .22 rifle, but Pink suggested he use a bigger gun, a `30-aut-6.' III RP at 386. She also testified that her brother, Ron Lash, sold Davis a gun scope. And while she and Pink were driving to Reno on New Year's Day 1999, Lash overheard Pink tell Davis to have `it done while {Pink} was gone.' III RP at 389. Lash and Pink married while in Reno.
Lash was also with Pink when he gave Davis a green ammunition box. The box contained a silver handgun, and Pink indicated that the box also held enough explosives to blow up a football field. Lash explained that she saw wires and something that looked like Silly Putty in the box. She also testified that she overheard Davis tell Pink that he had been watching Perrine's place at night and he knew Perrine's movements.
Pink lived in Judy Petrina's attic before his arrest. Police searched the attic and found a rifle. Pink had told Lance Petrina, Judy's husband, to say that Lance owned the rifle if the police discovered it.
Ron Lash frequently visited Pink at Davis's house between December 1998 and January 1999. He testified that during this period Pink told him that he would `like to do' Perrine and that he would like to `blow{} him up' or shoot him. III RP at 444-45. Also, according to Ron, Davis unsuccessfully tried to build a gun silencer with a piece of PVC pipe and a baby bottle nipple.
Pink's fellow inmate, Andrew Rasmussen, testified that Pink complained to him that Perrine continually harassed him and caused him to return to prison. Rasmussen testified that Pink said that when he got out of prison he was going to get even with Perrine and `blow {him} away' if given the opportunity. II RP at 295.
On April 2, 1999, the State charged Pink with conspiracy to commit first degree murder (count I) and first degree assault (count II), while armed with a deadly weapon for both counts. Pink moved to suppress evidence obtained from his car, arguing that the vehicle's warrantless seizure was unconstitutional. The trial court denied the motion.
A jury convicted Pink of both counts. The trial court imposed a 600-month exceptional sentence on count I and a consecutive 147-month standard range sentence on count II.
In support of the exceptional sentence, the trial court found that the conspiracy to kill Perrine was directly related to his official CCO duties, and the placement of the bomb endangered Perrine and other members of his family in their zone of privacy.
On November 8, 1999, Pink appealed his conviction and sentence, arguing, there, that the trial court erred in admitting Lash's testimony in violation of the marital privilege statute and in considering Pink's Oregon conviction of second degree robbery and adding two points to his offender score.
We remanded the matter to the trial court to determine whether (1) the facts supported the marital privilege and (2) Pink's Oregon conviction was properly counted in his offender score.
On remand the trial court specifically noted that, according to Lash, Pink married her to provide himself with an alibi. Lash had previously married Patrick McFadden on April 6, 1998, and filed a petition for dissolution of the marriage on January 6, 1999. The marriage was dissolved on May 7, 1999. The trial court found that Lash married Pink while still married to McFadden. The court concluded that there was no basis to assert marital privilege and that the marriage between Pink and Lash was void ab initio.
Also on remand, the trial court found that it had properly included Pink's prior Oregon robbery conviction in his offender score because the Oregon second degree robbery conviction was comparable to Washington's first degree robbery.
Almost a year after sentencing, Pink filed a pro se motion for a new trial, arguing perjury, prosecutorial misconduct, and discovery abuse. The trial court denied the motion.
Pink appeals.
Pink first contends that the trial court erred in denying his motion to suppress evidence obtained from his car because the police improperly seized it. He asserts that exigent circumstances did not justify the car's seizure.
We review a trial court's denial of a motion to suppress to determine whether substantial evidence supports the findings and whether the findings support the conclusions. State v. Teran, 71 Wn. App. 668, 671, 862 P.2d 137 (1993), review denied, 123 Wn.2d 1021 (1994). Substantial evidence is evidence sufficient to persuade a fair-minded, rational person of the finding's truth. State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994). We review conclusions of law de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). And we give deference to the trial court on witness credibility. State v. Rogers, 44 Wn. App. 510, 515, 722 P.2d 1349 (1986).
A person arrested while in possession of a locked vehicle has a legitimate expectation of privacy in the vehicle and articles concealed from open view under Washington Constitution article I, section 7. State v. Simpson, 95 Wn.2d 170, 187, 622 P.2d 1199 (1980). When officers approach a parked, immobile, unoccupied, secured vehicle, exigent circumstances in addition to the potential mobility of the car must exist to justify a warrantless search or seizure. State v. Patterson, 112 Wn.2d 731, 735, 774 P.2d 10 (1989).
The exigency exception applies when it is impractical to obtain a warrant because: (1) the officer is in hot pursuit; (2) the suspect is fleeing the scene; (3) there is immediate danger to the arresting officer or the public; (4) there is potential mobility of a vehicle; and (5) there is potential mobility or destruction of the evidence. State v. Bessette, 105 Wn. App. 793, 798, 21 P.3d 318 (2001). The State must convince the court that it was impractical or unsafe for the officers to take the time to acquire a warrant or to explain why the warrant would have been unavailable if requested. Bessette, 105 Wn. App. at 798.
After a hearing on the motion to suppress, the trial court found the following undisputed facts. At approximately 7:30 a.m. on January 26, 1999, a bomb injured Perrine at his home. Perrine told law enforcement officers that he suspected...
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