State v. Hoadrea

1

STATE OF WASHINGTON, Respondent, v. PETRU HOADREA, JR., Appellant.

No. 38305-9-III

Court of Appeals of Washington, Division 3

May 9, 2023

UNPUBLISHED OPINION

Siddoway, J.

Petru Hoadrea Jr. appeals convictions for second degree assault harassment, unlawful aiming or discharge of a firearm, and felony assault in violation of a protection order, all arising out of a late morning confrontation with neighbors with whom he was having a boundary dispute.

He asserts confrontation claims that were waived at trial, other issues raised for the first time on appeal, and alleges his trial lawyer provided ineffective assistance of counsel. We affirm the convictions but remand with directions to strike the costs of supervision imposed at subsection 4.2(B)(7) of his judgment and sentence.

FACTS AND PROCEDURAL BACKGROUND

As of mid-May 2020, when Petru Hoadrea committed the offenses in this matter, his once-friendly relationship with his Stevens County neighbors, Jack and Elaine Simmons, had soured. The parties' homes sat on a hill above a pond, and Mr Hoadrea had built a fence on an allegedly-surveyed property line on their lower property that Mr. Simmons removed after obtaining his own survey, which he recorded. The parties had called the police on each other multiple times. In early 2020, Elaine Simmons had obtained a no-contact order against Mr. Hoadrea. In mid-April of that year, Mr. Hoadrea had been arrested and charged with violating the no-contact order and for theft in the third degree after stealing the Simmonses' fence posts.

At around 11:00 a.m. on May 19, Mr. Hoadrea was sleeping in having completed a stint in jail, when he woke to the sound of Mr. Simmons driving stakes for a new fence conforming to his recorded survey. Mr. Hoadrea went outside to investigate and saw Mr. Simmons performing the fence work while Ms. Simmons sat on a four-wheeler nearby. Standing on the hilltop above them, Mr. Hoadrea began yelling at them to stop and get off his property. Mr. Simmons did not respond or look up, but Ms. Simmons yelled back that they had a right to be there. Mr. Hoadrea threatened to "fire a warning shot" if they did not leave, after which he fired a shot from a .22 revolver, allegedly in their direction. Rep. of Proc. (RP) at 336.

Ms. Simmons and Mr. Hoadrea both called 911. Stevens County Sheriff's Deputy Travis Feldner responded and spoke with the Simmonses. Based on a brief statement obtained from the Simmonses, Deputy Feldner undertook to obtain a warrant to search Mr. Hoadrea's home, which he and Detective Travis Frizzell assisted Detective J. Coleman Schumacher in executing after the detective also interviewed the Simmonses.

The officers seized ammunition and 15 firearms during the search, including the .22 revolver used to fire the warning shot.

Mr. Hoadrea was eventually charged with two counts of assault in the second degree, two counts of harassment, one count of unlawful aiming or discharge of a firearm, and one count of felony assault in violation of a protection order while armed with a firearm.

Pretrial proceedings and trial

A month before Mr. Hoadrea's jury trial, the State filed motions in limine in which it sought to offer, as excited utterances and present sense impression, both the recording of Ms. Simmons's 911 call and statements she made to her husband in the moments after the warning shot was fired. The State disclosed in its motion that while Ms. Simmons's unavailability for trial was not required for the hearsay exceptions to apply, she was unavailable, as "[she] has had a brain aneurism and . . . is unable to be present or testify at trial due to her physical and mental inability." Clerk's Papers (CP) at 39. At a pretrial hearing, the court and both lawyers agreed that a foundation could likely be laid for admitting the 911 call and statements to Mr. Simmons under the hearsay exceptions, and they would be admitted subject to a proper foundation. The State had not moved for an order permitting it to offer the statements made by the Simmonses to law enforcement, and the court and counsel agreed at the hearing that the ruling did not go that far.

At trial, Mr. Simmons testified to a couple of things Ms. Simmons said to him immediately following the warning shot: When he turned to her after hearing the shot and asked, "What's this?" she answered, "He shot at you"; and pointed out to him where the bullet had touched ground. RP at 236. Mr. Simmons was asked to identify for jurors the spot she identified using photographs that were in evidence. She pointed to a spot in coarse gravel above where he had been standing. He testified that Ms. Simmons also told him at the time the shot was fired that she was scared. Questioned about her behavior in the weeks following the shooting, he testified that she seemed anxious and took additional precautions around the house, including sleeping with a gun under her pillow.

The recording of Ms. Simmons's 911 call was played for the jury without objection. In relevant part, it captured the following exchanges:

OPERATOR: . . . What's going on[?]

CALLER: He came out-we were trying to build our fence. We got it re-surveyed. We've got a copy of the survey-[its] been recorded three times and he just shot at us.

OPERATOR: What's his name?

CALLER: Petru Hoadrea.

OPERATOR: What is he doing today?

CALLER: We're down here building the (inaudible) fence and he just shot at us.

OPERATOR: Okay. ⎯you guys okay?

CALLER: Yeah. He said it was just a warning shot, but shot at us with a .22. He's threatened us before to shoot us, so-.

RP at 301-02.

A recording of Mr. Hoadrea's 911 call was also played for the jury. Mr. Hoadrea did not object. In relevant part, it captured the following exchanges:

OPERATOR: . . . [W]hat is it that you're reporting there today?

CALLER: Jack Simmons was told not to pound his stakes for the fence on my property. He's out there pounding stakes again . . . [a]fter he removed my fence line.

CALLER: . . . [T]his is crap because I'm not supposed to talk to them. He's out there yet again. You guys do nothin', the cops do nothing . . . [he] doesn't get off my property and I did fire a warning shot. But he's just out there-pounding away.

RP at 302-03.

Among trial testimony provided by Detective Schumacher was that Ms. Simmons "told [him] directly" when interviewed that she was scared of Mr. Hoadrea. RP at 309. When defense counsel objected to the testimony as hearsay, the prosecutor responded that it was an excited utterance. After a bit more foundation as to the timing, the trial court overruled the objection. During the next recess, the trial court informed counsel that his ruling on the statement of Ms. Simmons to the detective was based on his pretrial review of case law on the excited utterance exception. He encountered precedents that would support the exception's application to statements made several hours after a startling event. He identified the cases for the record.

Both parties offered considerable evidence about Mr. Hoadrea's gun collection and use of firearms. During voir dire, the State and defense counsel had quizzed potential jurors about their attitude about firearms, and a number of jurors volunteered the importance to them of their Second Amendment rights.

The State offered pictures of Mr. Hoadrea's guns and ammunition into evidence without objection. Deputies Feldner and Frizzell testified about the weapons recovered when they searched Mr. Hoadrea's home. Detective Frizzell stated that most of the firearms were properly stored in a gun safe.

Mr. Hoadrea testified that he was a veteran, range training-qualified, had served as a firearm instructor, and had invested in his firearm collection for 40 years. He emphasized his attentiveness to firearm safety. He testified that his warning shot was fired far away from the Simmonses, at a 90-degree angle into a hillside he used as a "target hill," characterizing it as "[n]owhere where the Simmonses were at." CP at 336, 351.

During closing arguments, defense counsel framed the case as presenting an issue of defense of property and emphasized the Second Amendment implications of the case:

We talked about the Second Amendment and the right of the people to keep and bear arms and how it shall not be infringed. And that was⎯important to a number of members of the panel. But I would submit to you that this is exactly how the Second Amendment protections are infringed. This right here is how the state takes away your guns. You all heard testimony about how this man defended his property, protecting his rights and his home, firing a warning shot . . . [a]nd the state just wants⎯to come in and take all of his weapons, which he's been collecting for thirty years, and arrest him.

RP at 418.

The jury found Mr. Hoadrea guilty as charged. The trial court imposed a 104-month sentence. The court found Mr. Hoadrea indigent, but did not strike boilerplate language in the felony judgment and sentence that imposed costs of supervision as a condition of community custody. Mr. Hoadrea appeals.

ANALYSIS

Mr Hoadrea assigns error on appeal to (A) the trial court's permitting testimony about Ms. Simmons's statements in violation of his Sixth Amendment right to confrontation; (B) the trial court's permitting the parties to offer "highly prejudicial and irrelevant" photos of firearms, violating his right to a fair trial, Br. of Appellant at 1; (C) insufficient evidence to support his convictions for harassment; and (D) imposing the costs of supervision despite finding him to be indigent.

We can summarily address Mr. Hoadrea's fourth assignment of error. We have previously rejected the argument that supervision costs are a type of "cost" that cannot be imposed on indigent defendants...