                                                                   2015MAI? Ik   r:- I   j-




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                            No. 72055-4-1


                    Respondent,                 DIVISION ONE


      v.
                                                UNPUBLISHED OPINION
IRA DAVID DECHANT,

                    Appellant.                  FILED: March 14, 2016


      Leach, J. — Ira Dechant appeals multiple convictions stemming from his

January 2013 arrest and his role in a subsequent plot to kill the man he believed

to be responsible for his arrest. He claims that the corpus delicti rule requires

independent proof to corroborate statements he made during the course of the

crimes of conspiracy, solicitation, and attempted murder. He also contends that

his trial counsel provided ineffective representation because he did not file a

motion to suppress evidence and that his multiple convictions based upon a

single plot to kill subject him to double jeopardy. Because Dechant's statements

made during the course of the crimes were not confessions, the corpus delicti

rule does not apply. He also fails to establish deficient conduct or prejudice, and

his convictions do not violate double jeopardy. Finally, none of the issues he

raises in his statement of additional grounds has merit. We affirm.
No. 72055-4-1 / 2




                                     FACTS


      On January 7, 2013, Seattle Police Officer Pete Lazarou received a tip

from a longstanding confidential informant, Louis Didomenici.    Didomenici told

Officer Lazarou that Ira Dechant had an outstanding warrant and possessed

firearms. Didomenici also told the officer that Dechant was driving a BMW in the

Ravenna neighborhood. In addition to being an informant, Didomenici worked as

an automobile broker and had loaned Dechant the BMW several days earlier.

      Officer Lazarou confirmed the outstanding warrant for Dechant's arrest.

With help from other officers, Officer Lazarou located and stopped the vehicle

Didomenici described.   The officers arrested Dechant on the warrant.   Dechant


told the officers he did not own the BMW and provided Didomenici's phone

number.   Officer Lazarou called Didomenici.    He came to the scene with the


vehicle's registered owner. Both consented to a search of the vehicle. During

the search, the police found several items, including two firearms, a police

tactical vest, a security badge, a King County Sheriff's Office patch, hypodermic

needles, and over $10,000 in cash.

       Police officers booked Dechant into the King County jail.           While

conducting a strip search, the police found baggies containing methamphetamine

and heroin.
No. 72055-4-1 / 3




        While in jail, Dechant met Michael Rogers, who had been arrested in

connection with a bank robbery.      Rogers and Dechant, who had both served

substantial time in custody, eventually shared a jail cell. Sitting at a card table

one day with Rogers and several others, Dechant expressed his anger at the

person who "set him up" and asked if anyone would be "willing to take care of the

guy."

        Rogers was interested in the proposal.     In later private conversations,

Dechant provided more details, including Didomenici's name and occupation.

Dechant drew a map showing where Didomenici lived.                 Dechant gave

instructions about how he wanted Rogers to kill Didomenici—he wanted him to

pour gasoline over Didomenici and set him on fire or, alternatively, he wanted

Rogers to shoot him and cut off his head and hands. Dechant told Rogers that

his "prodigy," Chuck, would provide anything Rogers needed, including a firearm

and money, in order to kill Didomenici. Dechant gave Rogers Chuck's address

and drew him a map to Chuck's house. Rogers asked for $8,000, but they did

not ultimately settle on a fixed price.   Dechant provided some information to

Rogers to enable him to commit identity thefts and raise money for Dechant's

bail. They discussed a plan to commit robberies together to raise funds once

they were both released from jail.
No. 72055-4-1 / 4




       Gradually, Rogers developed some reservations about the plan.              He

began to feel manipulated by Dechant and also discovered that Didomenici had

children. When jail authorities placed Dechant in isolation, Rogers reported the

plot to jail staff. Rogers said he believed that if he refused to carry out the plan,

Dechant would merely find someone else to do it.

       Rogers met with a detective and agreed to ask Dechant about the plan

while wearing a recording device.          In a recorded conversation, Dechant

confirmed that Chuck would provide Rogers with a "piece." He also gave Rogers

further instructions about when to go to Didomenici's residence and about

moving his dead body to a certain abandoned house.

      While in jail, Dechant called Charles Scheulke, the man he called "Chuck."

Scheulke met Dechant about a month before his January 2013 arrest.             They

robbed people and sold drugs together.          During the robberies, Scheulke and

Dechant disguised themselves as police officers, and both carried firearms.

       In their conversations, Dechant expressed anger about the "car salesman"

who "set [him] up" and asked Scheulke to visit him in person.          Dechant also

informed Scheulke about a fellow inmate who would be released from jail soon

and then contact him.      Dechant described Rogers' distinctive tattoo so that

Scheulke would be able to identify him.




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No. 72055-4-1 / 5




       Scheulke also visited Dechant in jail.   He brought a notebook and took

notes. They discussed Didomenici's betrayal.      Dechant instructed Scheulke to

provide Rogers with "anything that he needs." Dechant made it specifically clear

that Scheulke was to provide Rogers with a gun.

      On January 29, 2013, jail authorities released Rogers into the custody of

the investigating detective.   Just before his release, Rogers told Dechant that

Rogers' father was going to post his bail. Under police surveillance, Rogers went

to Scheulke's home. According to Scheulke, at this point he became aware that

Rogers intended to kill Didomenici. Scheulke provided Rogers with a firearm and

agreed to go with him to Didomenici's residence. En route to Didomenici's home,

Rogers gave a prearranged signal to the police to indicate that Scheulke had

given him a firearm.    Police officers then stopped and arrested Rogers and

Scheulke.


       The State charged Dechant with unlawful possession of a firearm in the

second degree and possession of heroin based upon the evidence found when

he was arrested on January 7, 2013.       The State also charged Dechant with

solicitation to commit murder in the first degree, conspiracy to commit murder in

the first degree, and attempted murder in the first degree based on the plot to

murder Didomenici.
No. 72055-4-1 / 6




       The State originally charged Scheulke with attempted first degree murder

and conspiracy to commit first degree murder. He pleaded guilty to a reduced

charge in exchange for his agreement to testify at Dechant's trial. Rogers also

testified at trial. In exchange, the State reduced his underlying bank robbery

charge and allowed him to plead guilty to rendering criminal assistance.

      Although the State presented all the evidence in a single trial before a jury,

Dechant waived his right to a jury on the firearm and drug charges. The jury and

the trial court found Dechant guilty as charged.

                                CORPUS DELICTI


       Dechant challenges the sufficiency of the evidence supporting his

convictions related to the plot to murder Didomenici. Specifically, he argues, for

the first time on appeal, that the State failed to prove the corpus delicti of

solicitation, conspiracy, and attempted murder independent of his incriminating

out-of-court statements. We review this issue de novo.1

      "Corpus delicti" means the "body of the crime" and requires the State to

prove both a criminal act and a resulting loss.2 "The corpus delicti rule was

established to protect a defendant from the possibility of an unjust conviction

based upon a false confession alone."3

      1 State v. McPhee. 156 Wn. App. 44, 60, 230 P.3d 284 (2010); State v.
Pineda. 99 Wn. App. 65, 76-77, 992 P.2d 525 (2000).
      2 See State v. Aten, 130 Wn.2d 640, 655, 927 P.2d 210 (1996).
      3 State v. Vanqerpen, 125 Wn.2d 782, 796, 888 P.2d 1177 (1995).
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No. 72055-4-1 / 7




      Dechant's argument assumes that the incriminating statements he made

to Rogers and Scheulke were confessions. We disagree.           These statements

constituted part of the crimes. Dechant did not admit guilt relating to any past

completed crimes.     While Dechant argues at length that the corpus delicti

doctrine applies to this case, he cites no legal authority supporting the position

that statements made during the course of a crime or statements that constitute a

criminal act are confessions and, thus, require independent corroboration. And

this court has explicitly refused to apply the corpus delicti rule to exclude

statements made before or during the commission of a crime.4

       In State v. Dyson,5 we rejected the defendant's argument that his

statements comprising negotiation and agreement for an act of prostitution were

inadmissible because they were not corroborated by independent proof. We

looked to the definition of a "confession" as an "expression of guilt as to a past

act."6 We held the corpus delicti rule did not apply because Dyson's statements

were a part of the crime itself and not a confession to a completed crime.7




      4 See State v. Dyson, 91 Wn. App. 761, 763-64, 959 P.2d 1138 (1998);
see also State v. Pietrzak, 110 Wn. App. 670, 681-82, 41 P.3d 1240, review
denied, 147 Wn.2d 1013 (2002).
       5 91 Wn. App. 761, 763, 959 P.2d 1138 (1998).
       6 Dyson, 91 Wn. App. at 763.
       7 Dyson, 91 Wn. App. at 763-64.
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No. 72055-4-1 / 8




      Also, in State v. Pietrzak.8 the State presented evidence that Pietrzak told

people that he disliked the victim, Kelly Conway, and wanted to kill her. After

Pietrzak made these statements, Conway disappeared.9                Following the

disappearance, Pietrzak admitted to others that he killed the victim.10 On appeal,

Pietrzak challenged the sufficiency of the evidence to establish the corpus delicti

of the crime.11     Division Three of this court held that Pietrzak's precrime

incriminating statements were not confessions and, therefore, did not require

independent corroboration.12

      Similarly, Dechant's statements to Rogers and Scheulke were part of the

crimes of solicitation, conspiracy, and attempted murder.       Because Dechant

never "expressed guilt" at a later date about these acts, no confession occurred.

The corpus delicti rule does not apply.

                               DOUBLE JEOPARDY


       Dechant also challenges his convictions of solicitation to commit murder in

the first degree, conspiracy to commit murder in the first degree, and attempted

murder in the first degree on double jeopardy grounds.




       8 110 Wn. App. 670, 675-76, 41 P.3d 1240, review denied. 147 Wn.2d
1013(2002).
      9 Pietrzak. 110 Wn. App. at 672, 675.
      10 Pietrzak. 110 Wn. App. at 676.
      11 Pietrzak. 110 Wn. App. at 679.
      12 Pietrzak. 110 Wn. App. at 680-81.
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No. 72055-4-1 / 9




      The double jeopardy clauses of the state and federal constitutions protect

a defendant against multiple punishments for the same offense.13 Although the

State may bring multiple charges arising from the same criminal conduct when a

defendant's conduct supports charges under multiple criminal statutes, to

evaluate a double jeopardy challenge, a court must determine if, in light of

legislative intent, the charged crimes constitute the same offense.14      "If the

legislature authorized cumulative punishments for both crimes, then double

jeopardy is not offended."15

       If the statutory language does not clearly authorize multiple punishments,

the court must consider principles of statutory construction.16 Then, the test "to

determine whether there are two offenses or only one, is whether each provision

requires proof of a fact which the other does not."17 "'If there is an element in

each offense which is not included in the other, and proof of one offense would

not necessarily also prove the other, the offenses are not constitutionally the




      13 U.S. Const, amend. V; Wash. Const, art. I, § 9; State v. Calle. 125
Wn.2d 769, 772, 888 P.2d 155 (1995).
      14 State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005).
       15 Freeman. 153 Wn.2d at 771.
       16 In re Pers. Restraint of Borrero. 161 Wn.2d 532, 536, 167 P.3d 1106
(2007).
       17 Blockburqer v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L.
Ed. 306(1932).
                                       -9-
No. 72055-4-1/10




same and the double jeopardy clause does not prevent convictions for both

offenses.'"18

       Where, as here, one of the two crimes is an attempt crime, "the test

requires further refinement."19 This is because one of the elements of an attempt

crime is "'any act which is a substantial step toward the commission of that

crime.'"20 This "substantial step" element is merely a placeholder until the facts

of the particular case give it independent meaning.21 Therefore, to determine if

the two convictions violate double jeopardy, we examine the actual facts that

constitute the substantial step.22

       But even when the same facts supporting the defendant's conviction for

the separate offense could also constitute the substantial step of the attempt, no

double jeopardy violation occurs if the record includes additional facts that would

also constitute the substantial step.23 The reviewing court should not presume

"that the trier of fact relied on only the facts tending to prove both crimes."24

Unless the facts providing the basis for the separate conviction are also




       18 Calle, 125 Wn.2d at 777 (quoting State v. Vladovic, 99 Wn.2d 413, 423,
662 P.2d 853 (1983)).
       19 Borrero. 161 Wn.2d at 537.
       20 Borrero. 161 Wn.2d at 537 (quoting RCW 9A.28.020(1)).
       21 Borrero.   161   Wn.2d   at   537.
       22 Borrero.   161   Wn.2d   at   537.
       23 Borrero.   161   Wn.2d   at   538.
       24 Borrero.   161   Wn.2d   at   538.
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No. 72055-4-I /11




necessary to prove the attempt crime, double jeopardy principles are not

offended.25

      As the State points out, the crimes at issue include different legal

elements and each requires proof of a fact that the others do not. To prove the

crime of solicitation to commit murder in the first degree, the State was required

to demonstrate that Dechant offered to give money or some other thing of value

to another to engage in conduct constituting first degree murder.26            And

solicitation alone, which "involves no more than asking or enticing someone to

commit a crime," does not constitute the crime of attempt.27

       To convict Dechant of the crime of attempted murder in the first degree,

the State had to prove that he did an act "which is a substantial step toward the

commission of that crime."28 "[Cjonduct is not a substantial step 'unless it is

strongly corroborative ofthe actor's criminal purpose.'"29

       Finally, to prove conspiracy, the State had to establish that with the intent

to commit a crime, Dechant agreed with one or more persons to engage in or

cause the performance of such conduct and any member of the conspiracy took


       25 Borrero, 161 Wn.2d at 538-39.
       26 RCW 9A.28.030(1); State v. Jensen. 164 Wn.2d 943, 949, 195 P.3d 512
(2008).
       27 State v. Gay. 4 Wn. App. 834, 839-40, 486 P.2d 341 (1971).
     28RCW9A.28.020(1).
     29 State v. Workman, 90 Wn.2d 443, 451, 584 P.2d 382 (1978) (quoting
Model Penal Code § 5.01(2)).
                                        -11-
No. 72055-4-1/12




a substantial step in pursuance of the agreement.30 The substantial step in this

context merely serves to demonstrate an active agreement; it does not, as with

an attempt, have to corroborate criminal intent.31 Thus, "the conspiracy statute

requires a lesser act than does the attempt statute."32 The "preparatory conduct

which furthers the ability of the conspirators to carry out the agreement can be 'a

substantial step in pursuance of [the] agreement.'"33

       Dechant argues that the evidence required to prove conspiracy was the

same evidence required to prove the substantial step of the attempted murder.

We disagree.      As noted, a double jeopardy issue arises only if the same

evidence used to prove the crime of conspiracy was necessary to prove the

substantial step of the attempted murder.34 When Dechant's accomplices drove

toward Didomenici's residence armed with a firearm, they took a substantial step

toward the commission of murder in the first degree. However, the jury did not

need this evidence to find Dechant guilty of conspiracy.          Other evidence

established Dechant's agreement with Rogers and Scheulke and that the

conspirators took action in furtherance of the agreement. For instance, the jury

heard evidence that Dechant provided maps to Rogers and arranged for an

       30RCW9A.28.040(1).
       31 State v. Dent. 123 Wn.2d 467, 475, 869 P.2d 392 (1994).
       32 Dent, 123Wn.2dat477.
       33 Dent.   123 Wn.2d at 477 (alteration in original) (quoting RCW
9A.28.040(1)).
       34 See Borrero, 161 Wn.2d at 538-39.
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No. 72055-4-1/13




outside contact to assist him in carrying out the plan. Dechant had contact with

Scheulke, by telephone and in person, to secure his assistance. He wrote letters

to Scheulke with further instructions. Scheulke also took a substantial step in

furtherance of the agreement when he met with Rogers and supplied him with a

firearm and money. The evidence establishing the conspiracy was not the only

evidence constituting the substantial step element of attempted murder.

Therefore, no double jeopardy violation occurred.

      Dechant also contends that double jeopardy bars his conviction of

solicitation to commit murder because solicitation is merely a lesser included

offense of attempted murder. Therefore, he argues that these two convictions

should merge. In instances where the degree of one offense is elevated by

conduct constituting a separate offense, "the merger doctrine may help

determine legislative intent."35 This doctrine, however, applies "only when a

crime is elevated to a higher degree by proof of another crime proscribed

elsewhere in the criminal code."36       Here, proof that Dechant committed

solicitation to commit murder did not elevate the crime of attempted murder to a

higher degree. Accordingly, the merger doctrine does not apply.

       Dechant's convictions of conspiracy to commit murder in the first degree

and attempted murder in the first degree do not violate the prohibition against

       35 State v. Kier. 164 Wn.2d 798, 804, 194 P.3d 212 (2008).
       36 State v. Parmelee, 108 Wn. App. 702, 710, 32 P.3d 1029 (2001).
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No. 72055-4-1 /14




double jeopardy. Nor did the trial court err by declining to apply the doctrine of

merger to his convictions of solicitation to commit first degree murder and

attempted murder.

                      INEFFECTIVE ASSISTANCE OF COUNSEL


          Dechant claims his trial counsel provided ineffective assistance because

he did not file a motion to suppress the evidence seized during his January 2013

arrest.


          A defendant making this claim has the burden of establishing that (1)

counsel's performance was deficient and (2) counsel's deficient performance

prejudiced the defendant's case.37          The claim fails if a defendant does not

establish either prong.38 Counsel's performance is deficient if it falls below an

objective standard of reasonableness.39 Our scrutiny of counsel's performance is

highly deferential, and we strongly presume reasonableness.40            When an

ineffective assistance of counsel claim is based on a failure to move to suppress

evidence, the defendant must show that the motion to suppress would have been

granted.41




      37 Strickland v. Washington. 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984).
          38 Strickland. 466 U.S. at 700.
          39 State v. McFarland. 127 Wn.2d 322, 334, 899 P.2d 1251 (1995).
          40 McFarland. 127 Wn.2d at 335.
          41 McFarland. 127 Wn.2d at 333-34.
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No. 72055-4-1/15




      Dechant claims that counsel should have moved to suppress evidence

because the police searched the BMW without valid consent. He argues that his

"borrowed car agreement" with Didomenici gave him the exclusive right to

consent to a search.   He asserts that neither consent from Didomenici or the

registered owner supplied lawful authority to search. Although some testimony

suggests an agreement about Dechant's temporary use of the vehicle, the record

contains no evidence about the terms of that agreement.        Dechant points to

Scheulke's testimony that he thought the vehicle might represent payment for a

drug debt. But Dechant told the police that he could not consent to the search

because he was not the legal owner and provided Didomenici's telephone

number.    Dechant fails to show that his motion to suppress would have been

granted.    Moreover, not asserting ownership in the vehicle and thereby

distancing Dechant from the contraband in the vehicle was a reasonable strategy

under the circumstances.


           STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW

      In a statement of additional grounds, Dechant makes several claims, none

of which has merit. First, he claims the court failed to investigate possible juror

misconduct and improperly instructed the jurors.

      After a lunch break during the trial, before the jury entered the courtroom,

defense counsel informed the court that some witnesses had been "in the area"

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No. 72055-4-1/16




where the jury was "congregating."       Defense counsel directed the witnesses

away from that area but suggested that the court might instruct witnesses about

where to wait outside the courtroom.        Instead, the court requested that the

prosecutor have the State's witnesses wait further down the hall. After the jury

reentered the courtroom, the court reminded the jurors that the attorneys did not

wish to be impolite but were not allowed to communicate with them. The court

instructed the jurors not to attempt to talk with the attorneys and that if they had

questions about the case, to ask someone else.

       This record does not show any communication or contact between

witnesses and jurors or any other impropriety requiring court investigation. And

with regard to the trial court's instruction, Dechant fails to show that the court's

explanation of the rules governing contact between the lawyers and jurors was

incorrect or in any way prejudicial.42

       Next, Dechant challenges the court's admission of his recorded custodial

statements to a police detective.         He claims that his statements were

inadmissible because the police officers failed to state on the record at the outset

of the interview that they were recording the interview and the State failed to

prove that he consented to the recording as required by the Washington privacy

act, RCW 9.73.090(b).

       42 See RPC 3.5(b) (to preserve impartiality, ethical rules require attorneys
to avoid ex parte communication with jurors during a proceeding).
                                         -16-
No. 72055-4-1/17




      The trial court concluded that law enforcement properly advised Dechant

and he knew that the interview was being recorded. The interview room had

clear signage indicating that conversations were not private, and the room was

equipped with video and audio recording technology.        The officers advised

Dechant of his constitutional rights and discussed, in his presence, if they

needed to use a backup recorder. At another point during the interview, one of

the officers reminded Dechant that the interview was being recorded. Toward

the end of the interview, Dechant told the officers he would talk to them if they

ceased recording.

      State v. Jones43 supports this conclusion. Jones, a juvenile from Canada,

claimed that the trial court should have suppressed his postarrest statement

because the tape did not begin with the officer informing him that the statement

was being recorded, a violation of RCW 9.73.090(1 )(b)(i).44 The court addressed

whether the technical violation of RCW 9.73.090(1 )(b)(i) required suppression

when it was clear that Jones knew his statement was being recorded. The tape

recorder was in plain view, and an officer explained on the tape that he was in

the middle of a recording and started a question with "'for purposes of this

tape.'"45 The court held that "the tape recording conforms with the statute and is


       43 95 Wn.2d 616, 628 P.2d 472 (1981)
       44 Jones. 95Wn.2dat619.
       45 Jones. 95 Wn.2d at 626-27.
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No. 72055-4-1/18




therefore admissible."46 Likewise here, the trial court did not err by refusing to

suppress Dechant's tape-recorded statement on the grounds that the tape

recording did not comply with RCW 9.73.090(1 )(b)(i).

      Finally, Dechant argues that his counsel provided ineffective assistance

because he did not ask the court to suppress his statements to Rogers under

Massiah v. United States.47 He claims this case requires suppression because

Rogers was a government agent and because some of his statements pertained

to the pending drug and firearm charges. We disagree.

      Once the State charges a defendant with a crime, it may not knowingly

circumvent his Sixth Amendment right to counsel by using an undisclosed state

agent to deliberately elicit an incriminating statement.48 The State violates a

defendant's right to counsel when it uses evidence against the defendant that it

deliberately elicited while his attorney was not present.49 The Sixth Amendment

right to counsel is offense-specific and cannot be invoked for all future

prosecutions.50




      46 Jones. 95 Wn.2d at 627.
       47 377 U.S. 201, 206, 84 S. Ct. 1199, 12 L .Ed. 2d 246 (1964)
       48 Maine v. Moulton. 474 U.S. 159, 176, 106 S. Ct. 477, 88 L. Ed. 2d 481
(1985).
       49 Fairbank v. Avers. 650 F.3d 1243, 1255 (9th Cir. 2011) (citing Massiah.
377 U.S. at 206).
       50 United States v. Hines. 963 F.2d 255, 257 (9th Cir. 1992) (citing McNeil
v. Wisconsin. 501 U.S. 171, 175, 111 S. Ct. 2204, 115 L Ed. 2d 158(1991)).
                                       -18-
No. 72055-4-1/19




       Nothing in the record suggests that the State deliberately elicited, through

Rogers, any statements about his pending charges. According to Rogers and

the detective who conducted the investigation, Rogers' instructions were only to

ask about the plan to kill Didomenici.     Because Dechant does not establish a

Sixth Amendment violation, he cannot show that a motion brought on this ground

would have been successful. His ineffective assistance of counsel claim fails.


      Affirmed.




WE CONCUR:




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