Opinion
No. 28657-2-II, Consolidated with No. 30928-9-II.
Filed: December 14, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Kitsap County. Docket No. 98-1-01470-7. Judgment or order under review. Date filed: 03/29/2002. Judge signing: Hon. M Karlynn Haberly.
Counsel for Appellant(s), James Lewis III Reese, Attorney at Law, 612 Sidney Ave, Port Orchard, WA 98366-4553.
Counsel for Respondent(s), Randall Avery Sutton, Kitsap Co Prosecutor's Office, Msc 35, 614 Division St, Port Orchard, WA 98366-4681.
Ralph Leonard appeals his convictions for first degree assault and various weapons offenses. He argues that the trial court erred in continuing the trial date and rejecting his insanity defense. He further argues that his trial counsel rendered ineffective assistance. We have consolidated his related personal restraint petition with his direct appeal. Finding no error, we affirm his convictions and deny his petition.
FACTS I. Background A. Initial Contact
On the evening of November 3, 1998, Bainbridge Island police responded to a citizen complaint that Ralph Leonard, a member of the live-aboard community in Eagle Harbor, had made threats with a firearm during an altercation. In the Bainbridge Island police boat, they approached Leonard on his boat anchored in the harbor. When officers tried to speak with Leonard, he told them to `[g]o the f*** away.' Report of Proceedings, (RP) (3/12/02) at 79. Leonard tried to avoid the police by motoring around the harbor. He attempted, unsuccessfully, to ram the police boat, and struck two other boats before losing power and tying up at the municipal moorage.
During the chase, Leonard started his chainsaw, waved it at the police, and told them he would kill them with the chainsaw if they came on board. The police abandoned their attempt to contact Leonard and left to obtain arrest and search warrants.
B. Second Contact
On November 14, 1998, five uniformed Bainbridge Island police officers prepared to serve a search warrant and two arrest warrants on Leonard on his boat anchored in Blakely Harbor. Again arriving by police boat, the officers approached and observed Leonard moving about. When Leonard saw them, he went below. The police called out to Leonard, declaring their identity and purpose several times. Leonard did not respond.
The police pulled up to one of Leonard's boats and tied off. Sergeant Weiss repeatedly announced that he was a police officer with a warrant, boarded Leonard's large sailboat, the Xanadu, and retrieved a chain saw. Leonard still did not respond. Weiss slid open the main hatch cover and opened the doors to the cabin, shined his flashlight into the cabin with his gun drawn, peeked into the cabin, saw movement, was immediately struck by a blast of shotgun powder in his face, and fell over backwards.
Another officer shot twice at the Xanadu's cabin. Weiss evacuated to the police boat, and the officers departed for shore. Paramedics found burns on Weiss's forehead and pellet wounds on his hand.
Sergeant Case spoke with Leonard on the phone, and Leonard agreed to allow Case to approach in the police boat. When the police pulled alongside Leonard's boats, Case and Leonard discussed the situation. Case explained that the police had to take him into custody. Leonard expressed concern that he would be hurt if he surrendered. Police managed to detain Leonard when he came aboard the police boat to help tie the vessels together.
The next day, police returned to Leonard's boats with a search warrant. They found a loaded, sawed-off shotgun that smelled like it had recently been fired, and a spent shotgun shell on the cabin deck below the main hatch.
II. Procedure A. Competency Hearing
The State charged Leonard with attempted murder, assault, and various other charges on November 18, 1998. On January 20, 2000, the trial court dismissed the charges without prejudice because Leonard was incompetent to stand trial.
B. Insanity Hearing
On March 9, 2001, the State refiled the charges. Leonard moved for acquittal by reason of insanity.
The trial court conducted an insanity hearing. Leonard called Dr. Brian Judd, Ph.D., a licensed psychologist, to testify. Judd had met with Leonard twice to determine his mental state. Judd also reviewed reports, prepared by Dr. Patricia Sowards of Western State Hospital, addressing Leonard's competency to stand trial. Dr. Judd elaborated on Dr. Sowards' diagnosis by stating, `[T]he delusion involves the person's belief that he or she is being conspired against . . . or obstructed in the pursuit of long-term goals. . . . Individuals with persecutory delusions are often resentful and angry and may resort to violence against those they believe are hurting them.' RP (1/7/02) at 55-56. Based on Dr. Sowards' report, Dr. Judd rendered a professional opinion that Leonard was not legally sane on November 14, 1998, when he shot at the officers, in that he did not appreciate the wrongfulness of his act, and he responded based on irrational fears.
Although Dr. Sowards did not address Leonard's mental state in her reports, she diagnosed Leonard with delusional disorder, persecutory type. She also stated in her report that Leonard feels pervasive persecution by the Bainbridge Island Police Department at a level beyond rationality.
To rebut this testimony, the State called Dr. Jason Dunham, Ph.D, who had met with Leonard five times. Dunham opined that there was insufficient evidence or available data to reach any opinion about whether Leonard was insane at the time of the offenses. Dunham diagnosed Leonard with a personality disorder, not otherwise specified, with schizotypal, paranoid, and antisocial traits.
According to Dunham, the evidence was not strong enough to support a diagnosis of any type of delusion. A major factor in reaching this opinion was that there was no objective first-hand account of what happened at the time of the incident. Other factors were that (1) Leonard exhibited rational, not irrational, behavior by trying to call the Coast Guard for help after shooting Officer Weiss; (2) Leonard moved the shotgun off the Xanadu indicating that Leonard knew he had done something wrong; (3) moving the gun off the boat to a place that he would not have easy access to it was inconsistent with Leonard having a delusion that he needed the weapon to defend himself; and (4) a delusional disorder would have to be extreme in order to prevent an individual from distinguishing right from wrong.
Dr. Dunham also acknowledged Dr. Sowards' reports, but he did not rely on them heavily because Sowards (1) had conducted a competency evaluation, not a sanity evaluation; and (2) she had no opinion as to Leonard's mental state at the time of the offense. Dunham further noted there was insufficient information available to reconstruct accurately Leonard's mental state at the time.
Given the underlying information, the trial court (1) found Dr. Dunham's conclusions to be stronger and more reliable than those of Dr. Judd; (2) concluded that Leonard `was not suffering from a mental disease or disorder on November 14, such that he did not know right from wrong,' RP (1/9/02) at 378; and (3) found, `[I]t has not been proven by a preponderance of the evidence that [Leonard] was insane on [November 14], as there's not objective, substantive evidence to make that finding.' RP (1/9/02) at 379
C. Continuances
Leonard waived his right to a speedy trial until November 15, 2001. The trial court granted the State's motion to continue the trial beyond November 15, 2001, because the State's expert, Dr. Dunham, and the deputy prosecutor had overlapping, pre-scheduled vacations until December 7, 2001, and both counsel asked to avoid a December trial date because of the difficulty of impaneling a jury over the holidays. Accordingly, the court continued the trial until the first available date in January.
D. Trial
Trial began on January 10, 2002, on eight counts set forth in the third amended information. At the conclusion of the trial, the court granted Leonard's motion to dismiss Count III, second degree assault on November 3. The jury convicted on Counts V through VIII. The jury hung on counts I, II and IV, and the State dropped count IV.
Clerk's Papers (CP) at 684-89 shows:
CHARGE DATE OFFICER INVOLVED
I — Attempted first degree murder November 14, 1998 Sgt. Weiss
II — First degree assault November 14, 1998 Sgt. Weiss
III — Second degree assault November 3, 1998 William Owens
IV — Intimidating a public servant November 3, 1998 Ofc. Johnson
V — Intimidating a public servant November 3, 1998 Sgt. Weiss
VI — First degree unlawful possession of a firearm (shotgun) November 14, 1998
VII — Possession of an unlawful weapon (short-barreled shotgun) November 14, 1998
VIII — First degree unlawful possession of a firearm (flare gun) November 14, 1998
Following a retrial on counts I and II, the jury acquitted on Count I, and convicted on Count II. Leonard appealed.
E. Personal Restraint Petition
Leonard also filed a personal restraint petition, which he moved to consolidate with his direct appeal. A commissioner of this court granted the motion. Leonard raises the following issues in his petition: (1) violation of due process arising from a defective arrest warrant and criminal prosecution after he had been declared not guilty by reason of insanity; (2) prosecutorial misconduct in making improper comments; and (3) multiple ineffective assistance of counsel and trial errors resulting in reversible cumulative error.
ANALYSIS I. Continuance
Leonard argues that the trial court erred in continuing the trial date. More specifically, he challenges the trial court's Finding of Fact VIII, which stated, in part, `[Leonard's] attorney has spoken with the State's expert, but needs the State's report to adequately prepare for trial.' Clerk's Papers (CP) at 284. Leonard argues that this finding is contrary to his stated position that he did not need additional time to prepare for trial:
I have literally stacks of psychological evaluations from Western State on Mr. Leonard, as well as Dr. Nakashima's report, as well as I've spoke to Mr. Dunham two or three times in the last week about his at least early conclusions. And we have the report from our expert, Dr. Judd, so I feel comfortable going forward, provided the report from Dr. Dunham.
RP (11/15/01) at 37 (emphasis added). Although Leonard asked that the case proceed to trial, his request seems to have been conditioned on receipt of Dr. Dunham's report. The report was not complete at the time of the continuance hearing, but it was supposed to be ready by the time Dr. Dunham left for vacation on November 16.
We review a trial court's decision to grant a continuance for abuse of discretion. State v. Carson, 128 Wn.2d 805, 814, 912 P.2d 1016 (1996). The trial court abuses it discretion if its decision is based on untenable grounds or on untenable reasons. Carson, 128 Wn.2d at 814. `The unavailability of a material State witness is a valid ground for continuing a criminal trial where there is a valid reason for the unavailability, the witness will become available within a reasonable time, and there is no substantial prejudice to the defendant.' State v. Nguyen, 68 Wn. App 906, 914, 847 P.2d 936, review denied, 122 Wn.2d 1008 (1993). We find no abuse here.
In Carson, the court was analyzing the facts under CrR 3.3(d)(8), which allowed the trial court discretion to grant continuances for unavoidable or unforeseen circumstances in 1992.
Criminal Rule (`CrR') 3.3(h)(2) provides:
This was the court rule in effect in 2001, when the State refiled the charges on Leonard.
On motion of the State, the court or a party, the court may continue the case when required in the administration of justice and the defendant will not be substantially prejudiced in the presentation of the defense. The motion must be filed on or before the date set for trial or the last day of any continuance or extension granted pursuant to this rule. The court must state on the record or in writing the reasons for the continuance.
Dr. Dunham's prescheduled vacation was a valid reason for his unavailability at a new trial date within the continuance period to which Leonard had previously agreed. Dr. Dunham was due to return within a reasonable time, on November 26. The trial was expected to last seven to 10 days, so continuing the trial until Dr. Dunham's return would have carried the trial into December. Neither party wanted a December trial. Therefore, the trial court continued the trial until the first available date in January.
We hold that the trial court properly found no substantial prejudice to Leonard, especially because access to Dr. Dunham's report would aid Leonard in presenting his case. And even if Leonard did not need Dr. Dunham's report before trial, the court did not abuse its discretion in continuing the trial to accommodate Dr. Dunham's vacation and both parties' wish to avoid empanelling a jury over the December holidays.
II. Insanity Defense
To establish an insanity defense, the defendant must show by a preponderance of the evidence that:
(1) At the time of the commission of the offense, as a result of mental disease or defect, the mind of the actor was affected to such an extent that:
(a) He was unable to perceive the nature and quality of the act with which he is charged; or
(b) He was unable to tell right from wrong with reference to the particular act charged.
RCW 9A.12.010(1)(2). The trial court must weigh the evidence and grant a motion for acquittal if the evidence preponderates in the defendant's favor. State v. Sommerville, 111 Wn.2d 524, 532, 760 P.2d 932 (1988). If the court weighs the evidence and is not satisfied that acquittal by reason of insanity is warranted, the question must be submitted to the trier of fact at trial. Sommerville, 111 Wn.2d at 532.
Leonard argues (1) the trial court failed to weigh the evidence and instead applied a conflict of evidence standard; and (2) the court's findings are not supported by substantial evidence. The record shows to the contrary.
First, the trial court explicitly recognized a preponderance of the evidence standard, as evidenced by its comments on the record:
The standard of proof for the defense on a motion for acquittal is preponderance of the evidence, and their burden of proof being that the defendant was suffering form a mental disease or defect such that they were unable to perceive the nature of the acts that they committed, or unable to tell right from wrong with reference to the acts committed.
RP (1/9/02) at 370. The record also shows that the trial court actually weighed the evidence: (1) It found that Dr. Sowards' report `[did] not have a lot of weight on the issue of sanity.' RP (1/9/02) at 372. (2) The court found `the conclusions reached by Dr. Dunham and Dr. Gagliardi to be stronger than that of Dr. Judd, given the underlying information.' RP (1/9/02) at 380-81. (3) The court concluded, `[T]here is insufficient evidence to show by a preponderance of the evidence that Mr. Leonard was suffering from a mental disorder.' RP (1/9/02) at 380. Thus, the record shows the trial court was aware of the proper evidentiary standard and applied it appropriately.
Second, substantial evidence supports the trial court's ruling. Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise. State v. Thetford, 109 Wn.2d 392, 396, 745 P.2d 496 (1987). The fact finder must weigh the evidence and determine the credibility of witnesses. State v. Jeannotte, 133 Wn.2d 847, 853, 947 P.2d 1192 (1997). The fact finder is free to accept or to reject an expert's opinion. State v. Moon, 45 Wn. App 692, 698, 726 P.2d 1263 (1986), review denied, 108 Wn.2d 1029 (1987). The weight given an expert's conclusions is left to the fact finder. State v. Lord, 117 Wn.2d 829, 854, 822 P.2d 177 (1991).
Here, the trial court lent more weight to Dr. Dunham's conclusions than to Dr. Judd's. The court discounted Dr. Judd's opinion partly because of his heavy reliance on the reports of Dr. Sowards, who had interviewed Leonard on only two occasions. Furthermore, in her reports, Dr. Sowards was addressing Leonard's competency to stand trial, not his mental state at the time of the charged offenses.
In contrast, the trial court gave great weight to the fact that Dr. Dunham spent approximately 49 hours interviewing Leonard, reviewing reports, and preparing his evaluation. But even after Dr. Dunham's extensive investigations, he opined that there was not enough objective data from which to conclude whether Leonard had been acting under a delusion during his encounters with the Bainbridge Island police.
The trial court further noted the lack of evidence that Leonard was preoccupied by any fear of the Bainbridge Island police in the days between the November 3 and November 14 incidents. And the court agreed with Dr. Dunham that if Leonard did have a delusional disorder, it would have been at a very low level, not intense enough to constitute legal insanity. The court focused on Leonard's willingness to talk to the police and that he calmed down, cooperated with the police, and let them help him.
Accordingly, we find substantial evidence in the record to support the trial court's denial of Leonard's motion for acquittal by reason of insanity.
III. Ineffective Assistance of Counsel
Leonard next argues that his trial counsel rendered ineffective assistance. There is great judicial deference to counsel's performance; and we begin our analysis with a strong presumption that counsel was effective. Strickland v. Washington, 466 U.S. 668, 689-90, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. McFarland, 127 Wn.2d 332, 335, 899 P.2d 1251 (1995).
A defendant shows ineffective assistance of counsel through (1) counsel's deficient performance and (2) prejudice from the deficient performance. State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). Deficient performance occurs when counsel's performance falls below an objective standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d 1239 (1997), cert. denied, 523 U.S. 1008 (1998). But matters concerning trial strategy or tactics do not demonstrate deficient performance. State v. Hendrickson, 129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). Prejudice occurs when, but for the deficient performance, the outcome would have differed. In the Matter of the Personal Restraint Petition of Pirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
A. Defenses
Leonard complains that his attorney did not raise self-defense or diminished capacity defenses at trial. But he fails to `show in the record the absence of a legitimate strategic or tactical reason supporting the challenged conduct by counsel.' State v. Mannering, 150 Wn.2d 277, 286, 75 P.3d 961 (2003).
The record indicates that Leonard's attorney weighed a number of defenses, including self defense and diminished capacity, before settling on an insanity defense. Leonard has not shown from the record that his attorney did not give careful thought to these alternate defenses. Moreover, the United States Supreme Court has recognized that it is preferable to focus on one particular strategy rather than a `shotgun approach.' Yarborough v. Gentry, 540 U.S. 1, 7, 124 S. Ct. 1, 157 L. Ed. 2d 1 (2003).
Applying the presumption of effective assistance together with attorney discretion in tactical and strategic trial decisions, Leonard fails to show that his counsel's performance was deficient in not raising self defense and diminished capacity, in addition to an insanity defense, at trial. Leonard having failed to establish the first prong of ineffective assistance of counsel, we do not reach the second prong, prejudice.
B. Search Warrant
Leonard next challenges counsel's failure to move to suppress the shotgun Leonard used to assault Officer Weiss. He argues that the search warrant was deficient because (1) it described, with a lack of particularity, the smaller sailboat tied up to the Xanadu; and (2) it authorized search of a sailboat located in Eagle Harbor, but the search occurred in Blakely Harbor.
Leonard's arguments fail for two reasons: (1) Officer Weiss was lawfully on the Xanadu moored in Blakely Harbor to serve two arrest warrants on Leonard; and (2) after the shooting, police lawfully seized the shotgun under a second search warrant describing Leonard's boats in Blakely Harbor and authorizing recovery of any firearm, ammunition, or spent rounds.
Moreover, Weiss was lawfully on board the Xanadu to serve Leonard's arrest warrants. His subsequent actions in opening the boat's hatch were also lawful. RCW 10.31.040 provides, `To make an arrest in criminal actions, the officer may break open any outer or inner door, or windows of a dwelling house or other building, or any other inclosure, if, after notice of his office and purpose, he be refused admittance.' Here, police announced their office and purpose several times upon arrival, but Leonard did not respond. Once on board, Weiss again announced his presence and purpose, and again, Leonard did not respond. Thereafter, Weiss exercised his statutory authority to open the doors to the hatch, at which time Leonard shot at him with the shotgun.
We note that even if police had not been authorized to be on Leonard's boats, Leonard would not have been entitled to suppress the gun used in his assault on the officer. Evidence of assaults against law enforcement, even where there is alleged unlawful activity by law enforcement, falls outside the scope of the exclusionary rule. State v. McKinlay, 87 Wn. App. 394, 398, 942 P.2d 999 (1997), review denied, 134 Wn.2d 1014 (1998). This, combined with the subsequent warrant to search Leonard's boats in Blakely Harbor for implements of the assault, render it a practical impossibility to have suppressed the shotgun.
Police lawfully seized the shotgun. It was not ineffective assistance of counsel to refrain from seeking to suppress it.
C. Prosecutor's Closing Argument
Leonard next argues that his counsel rendered ineffective assistance because he failed to object to the prosecutor's misconduct during rebuttal. `We review allegedly improper comments in the context of the entire argument, the issues in the case, the evidence addressed in the argument, and the instructions given.' State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998), review denied, 137 Wn.2d 1017 (1999).
In closing arguments, a prosecutor has wide latitude to draw reasonable inferences from the evidence and to express such inferences to the jury. State v. Stevenson, 132 Wn.2d 668, 727, 940 P.2d 1239 (1997). But a criminal defendant's right to a fair trial is denied when the prosecutor makes improper comments and there is a substantial likelihood that the comments affected the jury's verdict. State v. Reed, 102 Wn.2d 140, 145, 684 P.2d 699 (1984). A defendant claiming prosecutorial misconduct bears the burden of demonstrating that the conduct was improper and that it prejudiced the defense. State v. Mak, 105 Wn.2d 692, 726, 718 P.2d 407 (1986). Where the defendant did not object at trial, the misconduct must be so flagrant and ill-intentioned that no curative instructions could have obviated the prejudice engendered by the misconduct. State v. Belgrade, 110 Wn.2d 504, 507, 755 P.2d 174 (1988).
In closing argument, the prosecutor focused on the elements of the crimes in the jury instructions and how the facts proven by the State satisfied those elements. He summed up, noting that the State had met its burden of proof.
In closing, defense counsel argued that Leonard's eccentric habits and lifestyle were irrelevant. Counsel continued to argue insanity, imploring the jury to view the issue from Leonard's perspective.
`What's not an issue for you is Mr. Leonard and his lifestyle, the live-aboards, the language he uses, the fact that he drinks.' RP (3/15/02) at 447.
In rebuttal, the prosecutor responded to Leonard's closing argument's focus on insanity with an alternative explanation:
Dr. Sowards talks about the defendant ha[ving] an impressive history of drinking alcohol. That probably has more to do with this than any delusional disorder. He's a mean drunk, doesn't like the cops.
Mr. Kelly said this is really a nonissue, the defendant's lifestyle, the language he uses, the drinking. Nonissue. You really shouldn't think about it. Why do you think he asked you not to think about that? Because that's the alternative explanation. He's an independent person who doesn't like authority, he doesn't like the police, doesn't like being told what to do. He's rough, he's violent, he drinks a lot. That's what explains his behavior. That is what explains him shooting guns at police officers, getting in fights with them. It's not any sort of mental defect, he's just a nasty guy.
I think Mr. Kelly kind of hit it on the head. He said it's perspective. Mr. Leonard has a different perspective. Well, that's right. It's not a delusion, he has a different perspective. He thinks that the police shouldn't be bugging him. He thinks that the police shouldn't come out to his boat when they have gotten all these complaints about his dog barking all day long. The cops are out there trying to do their job. Mr. Leonard says, `Well, I just don't agree with that,' and he gets his gun out.
RP (3/15/02) at 464-65.
Leonard's attorney did not object to these comments at trial. Nonetheless, reviewing the comments in the context of the entire argument, we cannot reasonably say that the prosecutor's rebuttal was flagrant and ill-intentioned. The prosecutor presented a fairly straightforward, initial closing argument. Only after Leonard implored the jury to view the events from his perspective in order to argue insanity in his closing argument did the prosecutor include Leonard's lifestyle and behavior in the State's rebuttal argument.
Furthermore, Leonard's insanity defense weighs against a finding of prosecutorial misconduct. The prosecutor presented an alternative explanation for Leonard's behavior besides insanity. The prosecutor's rebuttal argued reasonable inferences from the evidence; they were not flagrant and ill-intentioned pejorative characterizations of Leonard. Because there was no prosecutorial misconduct, failure to object was not deficient representation.
D. Defense Closing Argument
Leonard argues his attorney's closing argument was deficient in that it undermined Leonard's credibility and humanity in front of the jury. This argument lacks merit.
While explaining to the jury certain instructions about finding insanity, defense counsel commented that (1) Leonard presented a substantial likelihood of committing a felonious act jeopardizing public safety; (2) the jury faced a very difficult decision about whether Leonard could be released to a less restrictive facility than a mental health hospital; and (3) in conclusion:
[The] State has not proven Mr. Leonard intended to hurt Officer Weiss. I agree with [the prosecutor], we are all very, very fortunate that Officer Weiss is here today. Thank God he is, and very lucky. The question is, what do we do now? The [S]tate has not shown beyond a reasonable doubt intent to harm, intent to kill. If they have, Mr. Leonard was not in his right mind. He was suffering from delusions. . . . You then need to decide, you need to tell us where he should go.
RP (3/15/02) at 453-54. Leonard argues that these comments by his trial counsel were `beyond any trial strategy and were outrageous.' Personal Restraint Petition at 28. We disagree.
Defense counsel was not undermining Leonard's credibility or stipulating to guilt. Rather, defense counsel's closing argument was consistent with the strategy implicit in an insanity defense. Counsel was acknowledging Leonard's mental condition in light of the circumstances surrounding the incidents and imploring the jury to find Leonard not guilty by reason of insanity, delusions, or lack of requisite intents. Counsel argued Leonard's mental instability and that he belonged in a mental institution rather than prison. The Supreme Court has recognized similar strategies as being firmly within an advocate's discretion, `By candidly acknowledging his client's shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case.' Yarborough, 540 U.S. at 9.
We hold that Leonard did not receive ineffective assistance of counsel.
IV. Personal Restraint petition and Statement of Additional Grounds
In his personal restraint petition, Leonard argues the warrants were improperly issued because they lacked proper judicial participation. The three warrants that police attempted to serve on November 14, 1998, bore the signature of Judge Holman of Bainbridge Island Municipal Court. Sergeant Weiss signed the telephonic, post-shooting warrant on behalf of Kitsap Superior Court Judge Roof, who authorized it. Leonard proffers no evidence that these warrants lacked judicial approval, that the police unlawfully obtained them, or that proper procedures were not followed.
Leonard did not challenge the warrants at trial so neither party presented evidence as to the procedure used in procuring them.
Leonard also claims that the Bainbridge Island Police violated his right to privacy under Article I, Section 7 of the Washington Constitution and the Fourth Amendment of the United States Constitution when they approached him in response to a citizen complaint on November 3, 1998. He argues that this violation warrants dismissal of the charges under the fruit of the poisonous tree doctrine. But Leonard does not show how or why the police contact unlawfully violated his right to privacy.
On the contrary, our Supreme Court has made clear that a police officer may question an individual when the officer subjectively suspects the possibility of criminal activity, but does not have a suspicion rising to the level to justify a Terry stop. State v. O'Neill, 148 Wn.2d 564, 577, 62 P.3d 489 (2003). Here, police approached Leonard in a police boat to question him about a citizen complaint. Leonard replied with an expletive and tried to avoid the police by motoring around the harbor. The police did not attempt to detain Leonard but, instead, withdrew in order to obtain arrest and search warrants.
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
Without a seizure or even a boarding of his boat, there was no violation of Leonard's right to privacy. State v. Thorn, 129 Wn.2d 347, 350, 917 P.2d 108 (1996), overruled on other grounds, O'Neill, 148 Wn.2d at 564. We hold, therefore, that the police did not violate Leonard's right to privacy by attempting to question him in response to a citizen complaint.
Leonard's convictions are affirmed and his personal restraint petition is denied.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, P.J. and VAN DEREN, J., concur