State Of Washington, V Michael Harris Ehat ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON, No. 71963-7-1
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UNPUBLISHED OPINION F3
MICHAEL HARRIS EHAT,
Appellant. FILED: July 28, 2014
Schindler, J. — The jury convicted Michael Harris Ehat on two counts of
unlawful possession of a firearm. Ehat claims his attorney provided ineffective
assistance of counsel by failing to file a motion to suppress the firearms. Ehat also
contends the undisputed evidence at trial supported his reliance on the advice of a
police officer that he was entitled to possess the firearms. Because Ehat cannot
establish ineffective assistance, and because the record does not support the argument
that the undisputed evidence supported his defense, we affirm.
FACTS
Michael Harris Ehat lives in a two-bedroom trailer in Roy, Washington. Ehat's
brother Frank Robbins lived in a separate trailer on the same property.
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In 2007, Ehat pleaded guilty to assault in the fourth degree, domestic violence.
As a condition of the judgment and sentence, Ehat was prohibited from possessing
firearms. The "Notice of Ineligibility to Possess a Firearm" states, in pertinent part:
YOU ARE ADVISED THAT YOU MAY NOT POSSESS A FIREARM
UNTIL YOUR RIGHT HAS BEEN RESTORED BY A COURT OF
RECORD. VIOLATION IS A FELONY UNDER RCW 9.41.040.™
In July 2012, Ehat's friend Richard Young moved into the trailer with Ehat. On
August 6, Ehat discovered his brother Robbins had committed suicide and called 911.
Pierce County Sheriff's Department Detective Gary Sanders responded to the 911 call.
Ehat told Detective Sanders that his brother had personal property and firearms inside
the trailer. Detective Sanders told Ehat to secure the trailer "so that none of that stuff
would be taken." Ehat did not tell Detective Sanders that he was prohibited from
possessing firearms. Ehat took his brother's guns to his trailer.
On October 21, 2012, Young called 911 to report that Ehat had pointed a
shotgun at him. Deputies Franklin Brown and Anthony Filing responded to the 911 call.
Young was standing in a neighbor's driveway about 100 feet away from Ehat's trailer.
Detective Daren Witt arrived a few minutes later. The officers spoke to Young for about
10 to 15 minutes.
Deputy Filing was concerned about officer safety and called Ehat on his cell
phone to ask him to come outside. Ehat agreed to come outside. The officers
handcuffed Ehat and advised him of his Miranda2 rights. Ehat then told the officers that
"there were some firearms in the house," and invited the officers inside.
1 Emphasis in original.
2 Miranda v. Arizona. 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 71963-7-1/3
Ehat showed the officers a .22 caliber rifle on the floor of one of the bedrooms.
Ehat told officers that "the shotgun should have been in the room, but it was missing."
Young told officers the shotgun was behind the sofa in the living room. Deputy
Brown retrieved the shotgun from behind the sofa and secured both firearms in the
patrol car.
The State charged Ehat with assault in the second degree with a deadly weapon
in violation of RCW 9A.36.021(1)(c) and two counts of unlawful possession of a firearm
in violation of RCW 9.41.040(2)(a)(1).
The defense theory at trial on the assault charge was general denial. As to the
two counts of unlawful possession of a firearm, the defense theory was entrapment by
estoppel. The defense argued Ehat relied in good faith on Detective Sanders'
instruction to secure the weapons from his deceased brother's trailer.
The State called Young and several officers, including Deputy Brown and
Detective Sanders, to testify at trial. The court admitted certified copies of the
"Statement of Defendant on Plea of Guilty" for the 2007 assault conviction and the
Notice of Ineligibility to Possess a Firearm. The court also admitted into evidence a
copy of the 911 call, and the rifle and shotgun found in Ehat's trailer.
Young testified that on October 21, Ehat came "out of the bedroom with a
shotgun, puts it in my face, pumps out a round on the floor and says he can pick me out
the country boy way, matter of fact he can blow my brains out." Young testified he
grabbed the shotgun barrel and pushed it away, and then left the trailer to call 911.
Young testified that Ehat "kept a pump shotgun behind the couch and some other .22s
in the back bedroom."
No. 71963-7-1/4
Detective Witt testified that after Deputy Brown read Ehat his Miranda rights, "Mr.
Ehat invited us inside his home. We went inside. He showed us where some firearms
were."
Deputy Brown testified that Ehat told him that "he knew he shouldn't be
possessing [the shotgun] because he couldn't, but then he also explained that he was
told by Deputy Sanders to secure the weapons." Deputy Brown also testified that Ehat
was calm, cooperative, and not upset during his contact with him.
Detective Sanders testified that when he talked to Ehat after his brother's suicide,
"[tjhere was a mention of personal property and possibly guns in the residence, and I
just told him to make sure to secure the residence so that none of that stuff would be
taken." Detective Sanders testified he assumed Ehat would "[IJock the front door and
the back door." Detective Sanders testified that he did not instruct Ehat to take the
firearms home and that Ehat never said anything about his ineligibility to possess
firearms. Detective Sanders testified that he does not tell anyone to take firearms into
their possession "without doing a criminal history" check.
The court gave the defense proposed instruction on entrapment by estoppel.
Jury instruction 20 states:
It is a defense to the charge of Unlawful Possession of a Firearm Second
Degree, as charged in Counts II and III, if you find that the defendant
believed he was acting out of a good faith reliance on the apparent
authority of another to authorize his actions as long as his reliance was
objectively reasonable.
The defendant has the burden of proving this defense by a preponderance
of the evidence. Preponderance of the evidence means that you must be
persuaded, considering all of the evidence in the case, that it is more
probably true than not true. If you find from the evidence that the
defendant has established this defense, it will be your duty to return a
verdict of not guilty as to these charges.
No. 71963-7-1/5
The jury found Ehat not guilty of assault in the second degree and convicted Ehat
on the two counts of unlawful possession of a firearm. The trial court imposed a
standard-range six-month sentence. Ehat appeals.
ANALYSIS
Ineffective Assistance
Ehat argues his counsel provided ineffective assistance by failing to file a motion
to suppress the rifle and shotgun found in his trailer.
A criminal defendant has a constitutional right to effective assistance of counsel.
Strickland v. Washington. 466 U.S. 668, 685, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In order to prevail on a claim of ineffective assistance of counsel, Ehat must
demonstrate (1) deficient performance, that his attorney's representation fell below the
standard of reasonableness; and (2) resulting prejudice, that but for the deficient
performance, the result would have been different. Strickland. 466 U.S. at 687; State v.
Bowerman. 115 Wn.2d 794, 808, 802 P.2d 116 (1990) (adopting the standards in
Strickland). If a defendant fails to establish either prong, we need not inquire further.
State v. Hendrickson. 129 Wn.2d 61, 78, 917 P.2d 563 (1996).
To prevail on his claim that his attorney's performance was deficient because the
attorney did not file a motion to suppress the firearms found in his home, Ehat must
show the court would have granted the motion to suppress. Hendrickson. 129 Wn.2d at
79-80; see also State v. Brown. 159 Wn. App. 366, 371, 245 P.3d 776 (2011) (defense
counsel has no duty to pursue arguments that appear unlikely to succeed).
Ehat argues the warrantless search of his home violated his rights under article
1, section 7 of our state constitution because the officers did not tell Ehat he could
No. 71963-7-1/6
refuse to consent to the search as required by State v. Ferrier. 136 Wn.2d 103, 118-19,
960 P.2d 927 (1998). The State contends Ferrier did not apply in these circumstances.
We agree with the State.
In Ferrier. the court held that under article 1 section 7, an officer employing a
"knock and talk" procedure must inform the person whose consent is sought of the right
to refuse entry. Ferrier. 136 Wn.2d at 115. A "knock and talk" occurs when a police
officer, in order to avoid obtaining a warrant, goes to a residence, knocks on the door,
and asks to enter and search the home for contraband. Ferrier. 136 Wn.2d at 115.3
In Ferrier. four armed officers wearing "black 'raid jackets'" asked Ferrier's
permission to enter her home. Ferrier. 136 Wn.2d at 107. The officers had
uncorroborated information that Ferrier was conducting a marijuana grow operation in
her home, and conducted the "knock and talk" in order to avoid obtaining a warrant.
Ferrier. 136 Wn.2d at 106-07. Once Ferrier invited the officers inside, the officers told
Ferrier that they learned of a marijuana grow operation in her house. Ferrier. 136
Wn.2d at 108. Officers asked for consent to search the home and had Ferrier sign a
consent form, but did not explain that Ferrier could refuse to allow the officers to search
the home. Ferrier. 136 Wn.2d at 108. The Supreme Court held that under article 1,
section 7, an officer conducting a "knock and talk" procedure to obtain consent to
search a home must "inform the person from whom consent is sought that he or she
may lawfully refuse to consent to the search." Ferrier. 136 Wn.2d at 114-15, 118.
3 In Ferrier, the court quoted a police officer's testimony defining a "knock and talk" as:
You go to the door, knock on the door, make contact with the resident, ask ifyou can
come in to talk about whatever the complaint happens to be ....
Once you're inside, you talk about why you're there and ask for permission to
search the premises.
Ferrier, 136 Wn.2d at 107 (internal quotation marks omitted).
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In State v. Williams. 142 Wn.2d 17, 11 P.3d 714 (2000), the Supreme Court held
that it is not "prudent or necessary to extend Ferrier to require that police advise citizens
of their right to refuse entry every time a police officer enters their home." Williams. 142
Wn.2d at 27. In State v. Khounvichai. 149 Wn.2d 557, 69 P.3d 862 (2003), the court
concluded, "[Tjhere is a fundamental difference between requesting consent to search a
home and requesting consent to enter a home for other legitimate investigatory
purposes." Khounvichai. 149 Wn.2d at 564. And in State v. Leupp. 96 Wn. App. 324,
980 P.2d 765 (1999), the court held that an officer responding to a 911 distress call had
no duty to inform the defendant Leupp of his right to refuse consent to enter the home:
[The officer] did not go to Leupp's residence to conduct a knock and talk.
That inherently coercive situation occurs when police officers come to
someone's door without a warrant or other basis for entry, suspecting
illegal activity but lacking probable cause to arrest or search, and ask if
they can come inside to look around. . . . Instead, [the officer] came to
Leupp's door responding to a 911 distress call. ... In this situation, [the
officer] had no duty to inform Leupp of a right to refuse consent.
Leupp. 96 Wn. App. at 333-34.4
Likewise, here, the police did not employ a coercive "knock and talk" procedure.
The police responded to Young's 911 call and entered the trailer with the consent of
both residents to secure firearms allegedly involved in a domestic violence assault.
Because a motion to suppress on the grounds asserted by Ehat would not have been
successful, he does not establish ineffective assistance of counsel.
Sufficiency of the Evidence
In the alternative, Ehat argues insufficient evidence supports the unlawful
possession of a firearm convictions because the undisputed evidence established his
affirmative defense of entrapment by estoppel.
Internal quotation marks omitted.
No. 71963-7-1/8
The State must prove each essential element of the crime beyond a reasonable
doubt. InreWinship. 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L Ed. 2d 368 (1970); State
v. Oster. 147 Wn.2d 141, 146, 52 P.3d 26 (2002). In deciding whether sufficient
evidence supports a conviction, we must view the evidence in the light most favorable to
the State to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. State v. Salinas. 119 Wn.2d 192,
201, 829 P.2d 1068 (1992). A challenge to the sufficiency of the evidence admits the
truth of the State's evidence. Salinas. 119 Wn.2d at 201. "[A]ll reasonable inferences
from the evidence must be drawn in favor of the State and interpreted most strongly
against the defendant." Salinas. 119 Wn.2d at 201. We defer to the trier of fact on
"issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the
evidence." State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004), abrogated in
part on other grounds by Crawford v. Washington. 541 U.S. 36, 124 S. Ct. 1354, 158 L.
Ed. 2d 177 (2004).
While ignorance of the law is no defense," 'there exists a narrowly limited class
of cases where misleading governmental activity constitutes a good defense to a
criminal charge.'" State v. Locati. 111 Wn. App. 222, 227, 43 P.3d 1288 (2002)
(quoting United States v. Lansing. 424 F.2d 225, 226 (9th Cir. 1970)). "Such a defense
may rest on a diversity oftheories, such as entrapment, or 'on more general principles
of due process and estoppel.'" Locati. 111 Wn. App. at 227 (quoting Lansing. 424 F.2d
at 227). Entrapment by estoppel is an affirmative defense that "may be raised only
where a government official or agent has actively assured the defendant that certain
conduct is reasonable, and the defendant reasonably relies on that advice and
8
No. 71963-7-1/9
continues or initiates the conduct." State v. Krzeszowski. 106 Wn. App. 638, 646, 24
P.3d 485 (2001) (citing United States v. Trevino-Martinez. 86 F.3d 65, 69 (5th Cir.
1996)).
Ehat claims the undisputed evidence supports his affirmative defense of
entrapment by estoppel. The record does not support his argument. Detective Sanders
did not tell Ehat to take custody of the firearms or take the firearms to his trailer.
Detective Sanders testified that he told Ehat to lock the front and back door of his
brother's trailer to protect the firearms and other personal property. Detective Sanders
testified that in cases involving deaths, "property becomes disputed, so we never tell
anybody to take the property out because you have other family members that possibly
have vested interest in the property." Detective Sanders testified he would not have
given Ehat permission to take a firearm without verifying whether Ehat had a conviction
that prohibited him from possessing firearms.
We affirm.
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WE CONCUR: