State v. Arntsen, No. 62241-2-I (Wash. App. 5/17/2010)

Page 1

STATE OF WASHINGTON, Respondent, v. RICKY MARVIN ARNTSEN, Appellant.

No. 62241-2-I.

Consolidated with No. 62641-8-I.

Consolidated with No. 62741-4-I.

Court of Appeals of Washington, Division One.

Filed: May 17, 2010.

Appeal from Snohomish Superior Court. Docket No: 07-1-03196-5. Judgment or order under review. Date filed: 07/28/2008. Judge signing: Honorable Linda C Krese.

Counsel for Appellant(s), Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.

Ricky Arntsen (Appearing Pro Se), Snohomish County Corrections, 3025 Oakes Ave, Everett, WA, 98201.

Counsel for Respondent(s), Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA, 98201-4060.

Counsel for Appellant/Cross-Respondent, Washington Appellate Project, Attorney at Law, 1511 Third Avenue, Suite 701, Seattle, WA, 98101.

Susan F Wilk, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635,

Elaine L Winters, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA, 98101-3635.

Counsel for Respondent/Cross-Appellant, Seth Aaron Fine, Attorney at Law, Snohomish Co Pros Ofc, 3000 Rockefeller Ave, Everett, WA, 98201-4060.

UNPUBLISHED

COX, J.

Ricky Arntsen appeals his convictions of attempting to elude a pursuing police vehicle and first degree unlawful possession of a firearm. He claims that the trial court abused its discretion by declining to give a voluntary intoxication instruction and by refusing to determine that the two convictions constituted the same criminal conduct for sentencing purposes. He also claims there was no nexus between the crime of conviction and the restitution ordered. In his Statement of Additional Grounds for Review, Arntsen argues that the firearm evidence should have been suppressed for various reasons. He also contends he was denied his constitutional right to have the charges tried in a court with proper venue. Because Arntsen fails in his burden to demonstrate error, we affirm.

In the early morning hours of October 18, 2007, James Harris called police and reported that he had been held at gunpoint by Ricky Arntsen at Andy's Motel in Edmonds until Harris signed a bill of sale and title to his Cadillac. While Edmonds Police officers spoke to Harris, Arntsen also called the police. He admitted that he had the Cadillac, claimed that Harris agreed to sell it, and agreed to return to the motel to discuss the matter. Later that morning, Arntsen's wife Anna drove the Cadillac to the motel. Police arrested her for possession of stolen property.

Detective David Honnen heard about the reported robbery on his radio and attempted to interview Anna at the police station. She refused to speak to him. He then spoke with patrol officers who had been involved in the initial investigation. He then drove to Andy's Motel with Detective Stephen Morrison to investigate further. As the detectives approached the motel driveway, Detective Honnen saw a car and driver matching Harris's description of Arntsen pull out of another driveway in a green Taurus. The car and driver headed southbound on Highway 99. Detective Honnen made a U-turn and followed the car. He called for a patrol car to make a traffic stop, but Edmonds police were too far away.

As he drove into King County, Detective Honnen asked dispatch to contact the Shoreline Police Department. While Arnsten was stopped in heavy traffic at the traffic signal at 145th Street and Highway 99, a Shoreline patrol car, with lights and siren activated, pulled behind Arntsten. The police directed him to pull over. Arntsen pulled to the shoulder with the patrol car following. But as he reached the shoulder, the light turned green, and Arntsen sped away.

Several police cars chased Arntsen, stopping him at the parking lot of a 7-Eleven store on Roosevelt Way near 1st Avenue in north Seattle. Detective Honnen stopped his car about 8 feet behind Arntsen. Arntsen suddenly put his car in reverse and rammed his car into the detective's car, crushing the hood. He then sped forward in an attempt to escape.

Officers shot Arntsen, hitting him twice. He crashed into a parked car. Detective Honnen and another officer pulled Arntsen out of the car and arrested him.

Police later searched the car, finding a .357 firearm on the front seat of Arntsen's car, partially covered by a t-shirt. The firearm was fully loaded with hollow point bullets and matched the description provided by Harris when he reported the robbery.

The Snohomish County prosecutor charged Arntsen with the following crimes: count I: first degree robbery; count II: attempting to elude a pursuing police vehicle; count III: second degree assault of Detective Morrison; count IV: second degree assault of Detective Honnen; and count V: unlawful possession of a firearm in the first degree. Through counsel, Arntsen moved for a change of venue. He argued that counts II — V occurred in King County and should be tried there. He also claimed that he would be prejudiced if those counts were tried separately from the robbery charge. He also made other arguments that are not pertinent to this appeal.

The trial court addressed Arntsen's motion for a change of venue at a hearing. The State did not object to a change of venue on counts II — V, but would not agree to a change of venue on count I. Arntsen argued that he had a right to change venue under CrR 5.1(c). The trial court denied the motion for a change of venue on count I, the first degree robbery charge. But the trial court stated that joinder would be appropriate and gave Arntsen the choice of either joinder or a change of venue. "[G]iven the State's position, if you prefer to have the other counts tried in King County, I will grant a motion and sever those counts and direct a change of venue of those other counts to King County."¹

As the attorneys discussed allowing time for Arntsen to choose, he stated on the record, "I don't need to think it through, Your Honor, we can keep it here."² After a break, the trial court signed an order stating: "The Court finds the defendant, after consultation with counsel, has made a knowing, intelligent [and] voluntary waiver of venue in [counts] 2 — 5."³ Thereafter, Arntsen stated on the record:

I don't voluntarily waive my right to the change of venue, I'm disagreeing with the Court that because the Court is saying that he does not want to grant the motion for change of venue and my choice between severing the cases and having a change of venue. I would rather have all the cases done at one time in one trial rather than have to choose to sever. And that's my — so I don't waive the change of venue, I'm just going with the Court's motion — the Court's decision on the motion and deciding that if I have to make a choice between having two trials or the cases held at one time, I'm accepting one trial with everything right here. And that's it.⁴

Arntsen then filed an objection and motion to reconsider, claiming that his waiver of his right to trial in King County was "involuntary." He argued that the trial court's decision to force him to choose between his rights to joinder and proper venue rendered those rights meaningless. He asked the court to reconsider his request to transfer all the counts to King County. The trial court denied the motion.

At a hearing on June 6, 2008, the trial court granted Arntsen's motion to proceed pro se and appointed defense counsel as standby counsel. Trial began on June 9. There was no motion to suppress evidence.

Detective Honnen testified that he had asked Detective Morrison to accompany him to Andy's Motel because of the "nature of the investigation" involving "threatened use of a firearm," and he intended to "try to contact the witnesses and get to the bottom of what really happened." On cross-examination, Detective Honnen stated that when he had spoken with patrol officers about the robbery report, he had not yet seen any reports or witness statements. He learned that Harris was under investigation for drug dealing and stated that, given the circumstances, he intended to speak to Harris "at the onset of the investigation."

Detective Honnen testified that as he followed Arntsen from Edmonds down to 145th Street, Arntsen did not appear to know he was being followed and was leaning to the right, "maybe he was talking on the cell phone." He further testified that when Arntsen appeared to stop at the 7-Eleven, he stopped his car 10 to 15 feet from Arntsen's car, put the car in park, and was getting ready to get out when Arntsen's car suddenly "backed up and crashed into us . . . bounced up onto the hood," shattered the windshield and then "bounced off." After police shot Arntsen and his car finally stopped, Detective Honnen and Sergeant David Machado approached the car where Arntsen was sitting and commanded him to show his hands. Detective Honnen explained that he had his gun drawn because he thought it was "highly likely" that they "could be involved in a gun fight," "given the circumstances of the pursuit" and "the allegation that a gun was used in a robbery to take a vehicle." Sergeant Machado opened the door and removed Arntsen's seatbelt while Detective Honnen grabbed his left hand, pulled him out of the car, "put him face down on the pavement," and "handcuffed him." Detective Honnen said he did not look inside the car.

Seattle Police Detective Mark Hanf of the Crime Scene Investigation Unit testified that he was informed that nothing had been moved when he and his team arrived to document the scene and collect evidence. Detective Hanf testified about the view at the passenger side of Arntsen's car, "when you are on the outside of the vehicle on the right-hand side looking in the right front door window, which is broken out, . . . you could see in the front passenger seat clearly that of — partially of a gun, handgun." He identified pictures taken at the scene and introduced into evidence as accurately...