Washington Legal Roundup – Division I
Charles Hartzell and Jeremy Tieskotter were convicted of armed assault and unlawful possession of a firearm used to shoot into an apartment occupied by a woman and her daughter. Police had tracked them down after witnesses saw two people shooting out of the sunroof of a red car, recovered bullet fragments in the apartment wall and found the weapon that had fired the shots near a car with a bullet hole also matching the gun.
On appeal, Messrs. Hartzell and Teiskotter argued that the K-9 dog that was used to “sniff” next to the car to obtain the scent of the gun had conducted an unreasonable search without a warrant under article I, section 7 of the Washington Constitution. The court of appeals determined that this argument did not pass the “smell test.” Even though law enforcement cannot use artificial means to search from outside a place where a person has an expectation of privacy, a dog “sniff” that occurs in an area where a person does not have an expectation of privacy, and that is minimally intrusive is OK. The dog had “sniffed from a lawful vantage point.”
Hartzell and Tieskotter also argued on appeal that evidence of having previously fired the gun in question should not have been admitted under ER 404(b). That argument didn’t pass the smell test either, because that evidence was not offered that the defendants had a propensity to engage in gun crimes, but as circumstantial evidence that it had been those two, found with the same gun shortly thereafter, who had fired the gun earlier.
The court also rejected the argument of Mr. Hartzell that the court allowed prejudicial evidence regarding a prior crime in Thurston county because Mr. Hartzell, who was representing himself, opened the door, after a warning from the trial court, to evidence of that conduct during his cross examination of one of the police detectives.
The Court of Appeals also determined that the jury instructions were proper and that the state’s closing argument did not deny Mr. Hartzell a fair trial.
The Court of Appeals also determined that a firearm enhancement was appropriate under Blakely and that cumulative error as a basis for relief was not available.
The Court of Appeals did remand for resentencing because there was a chance that the total sentence, including time in community custody, could exceed the maximum sentence of ten years for the charged crimes.
Note to persons seeking to represent themselves, whether they be attorneys or lay persons, whether they be involved in criminal or civil matters: A man (or woman) who represents himself in court has a fool for a client (and a fool for a lawyer).