STATE v. HAFLICH, 18954-6-III (Wash.App. 5-22-2001)

Nos. 18954-6-III, 19638-1-III.The Court of Appeals of Washington, Division Three. Panel Four.
Filed: May 22, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Spokane County, No. 99-1-01369-8, Hon. Robert Austin, November 5, 1999, Judgment or order under review.

Counsel for Appellant(s), Janet G. Gemberling, Attorney At Law, Pmb 285, 1314 S Grand Blvd Ste 2, Spokane, WA 99202.

Counsel for Respondent(s), Kevin M. Korsmo, Spokane County Prosecutor’s Office, W. 1100 Mallon, Spokane, WA 99260.

Andrew J. Metts III, Deputy Prosecuting Attorney, Spokane Cnty Pros Offc, W 1100 Mallon, Spokane, WA 99260-0270.

JOHN A. SCHULTHEIS, J.

While investigating a burning house, a police officer began to suspect that Arthur Haflich might have started the fire.

The officer handcuffed Mr. Haflich and held him about 25 minutes before arresting him and reading him his rights. Mr. Haflich’s efforts to suppress his pre-arrest statements were unsuccessful and he was convicted in a jury trial of first degree arson. On appeal, he contends he was unlawfully detained before and during interrogation, and all evidence subsequently obtained should have been suppressed. In his personal restraint petition and pro se brief, Mr. Haflich argues the court used the wrong offender score in determining his sentence. He also contends he had ineffective assistance of counsel at trial. We find that any errors in admission of evidence were harmless, and affirm his conviction. We also find that the sentencing court properly based his offender score on a California felony conviction and deny his personal restraint petition.

Facts
At 7:24 on a summer evening in 1999, an operator received a 911 call from a man identifying himself as Arthur Haflich. Mr. Haflich was agitated and said he and his brother had been attacked when they went to inquire about renting a house. When they knocked on the door of the house, he explained, a black man and a white man came out, hit Mr. Haflich in the face, and hit his brother on the back. He asked for an officer to respond and added, `Either that or we’re gonna torch the sonuvabitch.’ Report of Proceedings (RP) at 32.

Mr. Haflich had difficulty giving the operator directions to the house in question, explaining that he was from out of town. He said he and his brother were `bitter.’ RP at 33. When asked if he could wait for the police to arrive, he stated, `Well, other than that, shit, I’ll just go to the gas station,’ and added, `I’ll get them clown[s] out of there.’ RP at 36. Before hanging up, Mr. Haflich had this exchange with the operator:

ARTHUR HAFLICH: Either this and either that or I’ll take care of `em myself.
911 OPERATOR: Sir, please.
ARTHUR HAFLICH: No, I’m serious, sweetheart.

RP at 37.

That same evening, Corporal Bradford Hallock of the Spokane Police Department sat in his parked patrol car, intermittently watching traffic. As he completed paper work, he noticed two men arguing across the street at a convenience store/gas station. The men appeared to patch things up, and Corporal Hallock returned to his paper work.

Sometime around 8 p.m., Corporal Hallock saw the two men walk into an open field next to the gas station. They disappeared over an embankment.

A few minutes later, the officer saw smoke rising from the direction the men were headed. Suspicious, Corporal Hallock called in a report of fire and drove over to the gas station. As he walked toward the smoke, he encountered Mr. Haflich, who looked like one of the men he had observed earlier.

Corporal Hallock asked Mr. Haflich what he was doing and what he knew about the fire. Mr. Haflich answered that he was not doing anything and did not know what Corporal Hallock was talking about. The officer observed that Mr. Haflich acted nervous, stumbled over his words, and would not meet his eye. He also noticed that Mr. Haflich’s hands smelled of gasoline, and asked why. Mr. Haflich did not respond for several seconds and then said he did not know why.

His suspicions aroused, the officer handcuffed Mr. Haflich and escorted him to the site of the fire: a house at the far end of the field. As they walked, Corporal Hallock asked Mr. Haflich about the other man seen with him. Mr. Haflich said he did not know what the officer was talking about. Still handcuffed, he accompanied Corporal Hallock as they walked from the burning house to a nearby apartment building, where the officer put Mr. Haflich into a patrol car. After talking to witnesses at the apartment building, Corporal Hallock took Mr. Haflich back to the gas station.

Lieutenant Michael Zambryski, a fire inspector, arrived at the gas station around 8:45 p.m., conferred with Corporal Hallock, and then began questioning Mr. Haflich, who remained handcuffed in a patrol car. Mr. Haflich told Lieutenant Zambryski that he had earned $29 stacking blankets and gas cans at Kmart that day, ate a pizza with his brother at Pizza Hut across the street from the gas station, bought beer and tobacco, and then walked down to look at a truck parked near the house that burned. When Mr. Haflich and his brother knocked on the house door, a black man and a white man walked out, pushed them, and told the Haflichs to leave.

As Lieutenant Zambryski and Mr. Haflich were talking, the gas station employee walked up and identified Mr. Haflich as the man who had bought a dollar’s worth of gasoline not long before the fire was discovered. Lieutenant Zambryski then passed a vapor detector over Mr. Haflich’s body and discovered a combustible vapor on Mr. Haflich’s hands. At this point, the lieutenant felt he had probable cause to arrest Mr. Haflich on suspicion of arson. He informed Mr. Haflich he was under arrest and read him his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). Mr. Haflich declined to answer further questions.

Mr. Haflich was charged by information with one count of first degree arson, RCW 9A.48.020. Before trial, defense counsel moved to suppress Mr. Haflich’s statements to police. CrR 3.5. He argued that Mr. Haflich was handcuffed and forced to accompany Corporal Hallock for at least 25 minutes, and was then questioned by Lieutenant Zambryski for an undetermined time before he was finally read his rights. The court found that the officers had a right, for a reasonable period of time, to detain Mr. Haflich while conducting their investigation. Once the investigation turned `accusatory,’ the court continued, the Miranda warnings were properly given. RP at 79. The statements were ruled admissible.

The audiotape of the 911 telephone call was played for the jury at trial. After hearing from Corporal Hallock, Lieutenant Zambryski, the gas station employee, and other witnesses, the State rested. Mr. Haflich offered no witnesses for the defense, and he did not take the stand. The jury found him guilty.

At sentencing, the State presented evidence that Mr. Haflich had pleaded guilty to a 1995 charge of assault with a deadly weapon (a wooden club) in California. Because the elements of this crime appeared to be equivalent to Washington’s crime of second degree assault with a deadly weapon, the court assigned Mr. Haflich an offender score of 2. Former RCW 9.94A.030(38) (1998); RCW 9.94A.360(8); RCW 9A.36.021. Mr. Haflich’s personal restraint petition has been consolidated with this appeal. Investigative Stop

Mr. Haflich first contends his statements to police and evidence obtained prior to and subsequent to his arrest should have been suppressed as fruits of an unlawful investigative stop. He argues he was unlawfully detained when Corporal Hallock placed him in handcuffs and took him along on an investigation that lasted over 25 minutes.

Under CrR 3.5, when a statement of the accused will be offered in evidence, the trial court holds a hearing to determine whether the statement is admissible. The purpose of the rule is to provide a uniform procedure for the admission of voluntary confessions and other custodial statements. State v. Williams, 137 Wn.2d 746, 750, 975 P.2d 963 (1999).

In essence, CrR 3.5 is designed to ward against the admission of involuntary, incriminating statements. Id. at 751. We review the denial of a suppression motion by independently evaluating the record to determine whether substantial evidence supports the findings and whether those findings support the conclusions. State v. Broadaway, 133 Wn.2d 118, 130, 942 P.2d 363 (1997); State v. Graffius, 74 Wn. App. 23, 29, 871 P.2d 1115 (1994).

Mr. Haflich assigns error to the trial court’s findings that Corporal Hallock (1) could see the house from his parked patrol car, (2) noticed smoke coming from the back of the house, and (3) saw Mr. Haflich and the other man walking away from the burning house. The record shows that Corporal Hallock described seeing the house down a small embankment and across the field. But in further testimony he stated that the smoke appeared to come from the roof and that he saw only Mr. Haflich walking toward him, away from the burning house. These distinctions in the facts carry no weight in the conclusions of law and are harmless deviations from the testimony.

More important, Mr. Haflich assigns error to the court’s conclusions that Miranda warnings were not required before the formal arrest and that Mr. Haflich’s statements were made voluntarily. Miranda safeguards apply as soon as a suspect’s freedom is curtailed to the degree associated with a formal arrest. State v. D.R., 84 Wn. App. 832, 836, 930 P.2d 350
(1997) (citing Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984)). The relevant inquiry is whether a reasonable person would believe his or her freedom of action was curtailed. Id.; State v. Ferguson, 76 Wn. App. 560, 566, 886 P.2d 1164 (1995). A routine investigative encounter supported by reasonable suspicion — or Terry[1] stop — does not require Miranda warnings. State v. Wilkinson, 56 Wn. App. 812, 819, 785 P.2d 1139 (1990). This is because, unlike a formal arrest, a typical investigative stop is not inherently coercive because the detention is presumed temporary and brief, is relatively less police dominated, and does not lend itself to deceptive interrogation tactics. State v. Walton, 67 Wn. App. 127, 130, 834 P.2d 624 (1992).

There is no question here that Corporal Hallock had sufficient articulable facts justifying an initial intrusion on Mr. Haflich’s freedom of movement. State v. Belieu, 112 Wn.2d 587, 595-96, 773 P.2d 46
(1989). Numerous factors created a reasonable suspicion that Mr. Haflich was involved in criminal activity. Corporal Hallock testified that he noticed two men at the gas station because they appeared to be arguing. A short while later, he saw them walk down an embankment in the general direction of a house on the other side of a field. Within minutes, he saw smoke pouring from the roof of the house. When he went to investigate, he encountered Mr. Haflich, smelling of gasoline, walking away from the house.

These facts supported a reasonable suspicion that Mr. Haflich might have been involved in a possible arson. They also supported further investigation of the crime and Mr. Haflich’s involvement.

When Corporal Hallock placed Mr. Haflich in handcuffs and forced Mr. Haflich to accompany him on a 25-minute investigation, however, the initial intrusion became significantly more coercive. A reasonable person would have believed his freedom of action was curtailed to a degree associated with formal arrest. D.R., 84 Wn. App. at 836. Any interrogation of Mr. Haflich after this point and before formal arrest was unlawful. Miranda, 384 U.S. at 467.

Interrogation involves a degree of compulsion. State v. Warner, 125 Wn.2d 876, 884, 889 P.2d 479 (1995). An officer’s questions constitute interrogation if the officer should have known the questions were reasonably likely to elicit an incriminating response and if the questions show a measure of compulsion beyond that inherent in custody. State v. Birnel, 89 Wn. App. 459, 467, 949 P.2d 433 (1998). Corporal Hallock asked Mr. Haflich his identity, his knowledge of the fire, why he smelled of gasoline, and where the other man was — all questions relating to his possible involvement in the crime. Lieutenant Zambryski asked Mr. Haflich for an account of his entire day. These questions were reasonably likely to elicit incriminating responses, and the nature of Mr. Haflich’s detention had an element of compulsion that would lead a reasonable person to believe he was required to answer. Consequently, we find that Mr. Haflich’s statements were inadmissible.

However, an error in admitting a defendant’s statement in violation of Miranda is harmless if the untainted evidence is so overwhelming that it necessarily leads to a finding of guilt. State v. Ng, 110 Wn.2d 32, 38, 750 P.2d 632 (1988); State v. Nason, 96 Wn. App. 686, 695, 981 P.2d 866
(1999), cert. denied, 121 S.Ct. 85 (2000). Here, the 911 recording placed Mr. Haflich and his brother in conflict with two men at a house, with Mr. Haflich threatening to `torch’ the men. RP at 32. The State presented photos copied from the gas station videotape showing Mr. Haflich carrying a plastic milk jug that the gas station employee testified was used to purchase a dollar’s worth of gasoline. Mr. Haflich was seen walking toward the house minutes before it was set on fire with a combustible fluid, and he was encountered walking away from it. This untainted evidence overwhelmingly supports the jury’s verdict of guilt. The statements Mr. Haflich made to Corporal Hallock and Lieutenant Zambryski merely denied any knowledge of or involvement with the crime and corroborated the information on the 911 tape.

Mr. Haflich’s objection to the admission of evidence other than his statements is raised for the first time on appeal. He did not challenge the admission of physical evidence in a CrR 3.6 motion. Generally, errors based on evidence allegedly obtained by an illegal search and seizure cannot be raised for the first time on appeal. State v. Silvers, 70 Wn.2d 430, 432, 423 P.2d 539 (1967). Appellate courts may consider a claim of error raised for the first time on appeal if it is `manifest’ and affects a constitutional right. RAP 2.5(a)(3); State v. McFarland, 127 Wn.2d 322, 333, 899 P.2d 1251 (1995). An error is manifest if it is truly of constitutional magnitude and actually prejudices the defendant’s rights at trial. McFarland, 127 Wn.2d at 333 (citing State v. Scott, 110 Wn.2d 682, 688, 757 P.2d 492 (1988)). The `tainted’ evidence here — Mr. Haflich’s shirt, the vapor test of his hands, and the gas station employee’s on-site identification of Mr. Haflich — was not prejudicial in light of the other overwhelming evidence of his guilt. Assistance of Counsel

Mr. Haflich next contends that by failing to challenge the admission of the allegedly tainted evidence, by failing to protect his speedy trial rights, and by failing to raise other objections at trial, defense counsel was ineffective.

Effective counsel is guaranteed by the Sixth Amendment to the United States Constitution and the Washington State Constitution article I, section 22 (amendment 10). State v. Hendrickson, 129 Wn.2d 61, 77, 917 P.2d 563 (1996). To prove ineffective assistance of counsel, the defendant must show that defense counsel’s representation fell below an objective standard of reasonableness, and that this deficient representation prejudiced the defendant. McFarland, 127 Wn.2d at 334-35. There is a strong presumption of effective representation. Id. at 335. The defendant carries the burden to show ineffective assistance based on the record established in the trial proceedings. Id.

In this case, defense counsel’s failure to challenge the admission of evidence in a CrR 3.6 hearing does not constitute per se deficient representation. McFarland, 127 Wn.2d at 336. Mr. Haflich must show in the record an absence of legitimate tactics or strategy supporting his counsel’s failure to seek a CrR 3.6 suppression hearing. Id. He does not meet his burden here. Moreover, he does not show a reasonable probability that the result of the trial would have been different if defense counsel had requested a CrR 3.6 hearing. Hendrickson, 129 Wn.2d at 78. As discussed above, the untainted evidence was more than sufficient to support the conviction.

Mr. Haflich’s remaining evidence of ineffective assistance of counsel is also inadequate. Although he contends his counsel caused a violation of his speedy trial rights, the record does not indicate whether or not Mr. Haflich consented to any continuances. His allegations that defense counsel did not `say anything’ during trial and did not properly cross-examine the witnesses are contradicted by the record. Pro Se Brief of Appellant. Nothing in the record supports his claims that a female officer who witnessed his arrest should have testified and that another witness sat in the courtroom during testimony, in violation of the court’s rule. Mr. Haflich also fails to support his claim that inconsistencies in the police officers’ stories should have been brought out on cross-examination. Offender Score

In his personal restraint petition and pro se brief, Mr. Haflich contends the trial court incorrectly characterized a previous California conviction as equivalent to a Washington felony, increasing his offender score and subsequent sentence. At sentencing, he insisted he had pleaded guilty to a misdemeanor battery charge, but the record appeared to show he pleaded guilty to a felony committed with a deadly weapon.

Standard sentencing ranges are determined by the defendant’s offender score and the seriousness level of the current offense. State v. Ford, 137 Wn.2d 472, 479, 973 P.2d 452 (1999). The offender score is calculated by totaling the defendant’s prior felony convictions and particular juvenile offenses. Id. Prior misdemeanors (except for felony traffic offenses) are not included in the offender score. Id. Out-of-state convictions may be counted in the defendant’s offender score only if the defendant’s criminal conduct can be classified as a comparable Washington crime and if that Washington crime would have been a felony. Id. at 479-80.

To classify the out-of-state conviction, the sentencing court must compare the elements of the foreign crime with the elements of the Washington criminal statutes in effect when the foreign crime was committed. State v. Morley, 134 Wn.2d 588, 606, 952 P.2d 167 (1998). The key question is under what statute the defendant would have been convicted if he or she had committed the same acts in Washington. Id. (citing State v. McCorkle, 88 Wn. App. 485, 495, 945 P.2d 736 (1997), aff’d, 137 Wn.2d 490, 973 P.2d 461 (1999)). If the elements are not identical, or if the out-of-state statute is broader than the Washington definition of the crime, the sentencing court looks at the defendant’s conduct. Morley, 134 Wn.2d at 606.

The State carries the burden of proving with a preponderance of the evidence that the out-of-state conviction would be classified as a felony in Washington. Ford, 137 Wn.2d at 479-80. While the best evidence is a certified copy of the judgment, the court may also look at the foreign indictment or information and other records, including the transcripts of prior proceedings. Id. at 80; Morley, 134 Wn.2d at 606. Calculation of the offender score is reviewed de novo. State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).

According to a California complaint filed May 31, 1995, Mr. Haflich was charged with one count of a violation of Section 459 of the Penal Code (PC), described as the willful and unlawful entry of an inhabited dwelling with the intent to commit a larceny or other felony. Count two of the same complaint charged Mr. Haflich with a violation of Section 245(a)(1) of the PC, described as the willful and unlawful assault upon a man, `with a deadly weapon, to wit, a wooden club, and by means of force likely to produce great bodily injury.’ Clerk’s Papers (CP) at 61. In count three, Mr. Haflich was charged with violation of Section 12020(a) of the PC, described as possession of a concealed dirk or dagger.

California records are terse and difficult to interpret by those unfamiliar with the terminology. A `Minute Order’ issued in July 1995 shows that Mr. Haflich pleaded guilty to count three and to Section 242 `as a misd,’ meaning, we assume, as a misdemeanor. CP at 66. Section 242 is simply a definition of battery as `any willful and unlawful use of force or violence upon the person of another.’ Cal. Penal Code § 242
(West 2001). A final `Minute Order and Order of Probation’ filed in October 1995 indicates that Mr. Haflich pleaded guilty to `PC 242 FEL,’ `P.C. 1192.7(C)(23)’ and `PC 12020(A) FEL.’ CP at 68. Section 1192.7(c) prohibits plea bargaining of serious felony charges and indicates in 1192.7(c)(23) that any felony involving use of a dangerous weapon is a serious felony. People v. Yarbrough, 57 Cal.App.4th 469, 474, 67 Cal.Rptr.2d 227 (1997).

The sentencing court here decided that Mr. Haflich’s conviction for `PC 242 FEL’ was equivalent to the Washington crime of second degree assault, RCW 9A.36.021(1)(c). A person commits second degree assault pursuant to RCW 9A.36.021(1)(c) if he or she `[a]ssaults another with a deadly weapon.’ Deadly weapon is defined as an instrument that has the capacity to inflict death, and from the manner it is used, may easily produce death. RCW 9.94A.125. Mr. Haflich was charged in California with assaulting a man with a club. Under the Washington statute, a club may be a deadly weapon. RCW 9.94A.125.

Our concern, however, is what Mr. Haflich actually pleaded guilty to.

The definition of battery in Section 242 of the California Penal Code does not include a deadly weapon element. On the other hand, Mr. Haflich’s October 1995 minute order also indicates, by citing `P.C. 1192.7(C)(23),’ that he is pleading to a `serious felony’ involving use of a dangerous or deadly weapon. This indicates that the references to Section 242 in the minute orders may be typographical errors, and that the court intended to convict him on a plea to Section 245(a)(1), assault with a deadly weapon. Whether or not this is the case, it appears from a preponderance of the evidence that Mr. Haflich was convicted of an assault (battery) with a dangerous or deadly weapon. The trial court properly set his offender score at two, based on the fact that his current conviction is a violent offense and his prior conviction in California was a violent felony offense (by definition, second degree assault is a violent felony offense). RCW 9A.48.020; former RCW 9.94A.030(38) (1998); RCW 9.94A.360(8).

Affirmed.[2] Personal restraint petition denied.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

WE CONCUR: SWEENEY, A.C.J., KATO, J.