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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  41045-1-II

                             Respondent,

       v.

MICHAEL L. MELLOR JR.,                                     UNPUBLISHED OPINION

                             Appellant.

       Quinn-Brintnall, J.   --  A jury entered verdicts finding Michael L. Mellor Jr. guilty of one 

count of second degree burglary, RCW 9A.52.030, and one count of violating the Uniform 

Controlled Substance Act (possession of methamphetamine) (VUCSA), RCW 69.50.4013(1).  

Mellor appeals his second degree burglary conviction asserting that (1) the trial court violated his 

constitutional privilege against compulsory self-incrimination by failing to hold a CrR 3.5 hearing,

and (2) defense counsel provided ineffective assistance.  Because substantial evidence in the 

record indicates that Mellor confessed to the burglary without compulsion or police coercion, he 

fails to show prejudice from either the absence of a CrR 3.5 hearing or his counsel's alleged 

deficient performance.  Accordingly, we affirm Mellor's convictions.    

                                            FACTS

       On September 30, 2009, around five in the evening, Washington State Patrol Trooper  

No. 41045-1-II

Ryan Aston responded to the scene of a reported burglary in progress near Hoquiam in Grays 

Harbor County.  Arriving at the scene, Aston saw Mellor exiting a "small shack" on fenced1

property belonging to Rollins Auto Wrecking.  Report of Proceedings (RP) (Apr. 13, 2010) at 33.  

Mellor was carrying an army raincoat, miscellaneous hand tools, and a paint can.  Aston contacted 

Mellor, who told Aston that he was "looking for someone."     RP (Apr. 13, 2010) at 35.  Aston 

asked if Mellor had permission to be on the property and Mellor admitted that he did not.  Aston 

then asked Mellor to come outside of the property fence and put down the items in his hands.  

Mellor complied with Aston's requests.  

       Trooper Aston determined that Mellor's demeanor was consistent with someone under the 

influence of methamphetamine, noting, "He was like already gushing, sweating, and he was 

talking super, super fast."  RP (Apr. 13, 2010) at 37.  Aston then proceeded to arrest and 

handcuff Mellor.  During the search incident to Mellor's arrest, Aston discovered "some papers,"

a film canister with methamphetamine, and a glass smoking pipe with "burn marks and residue 

from the methamphetamine."    RP (Apr. 13, 2010) at 45.  During this arrest process, Mellor told 

Aston that he had used methamphetamine earlier in the day.  He also told Aston that he knew 

people who lived on the property before he had gone to jail and that he was just looking for them.  

Aston then put Mellor in his patrol vehicle.  

       While helping Mellor into the vehicle, a second person came around an outside corner of 

the property fence.  Trooper Aston asked the individual to sit on the ground and wait while he 

1 Trooper Aston described the fencing surrounding the wrecking yard as "cyclone fencing where a 
gate comes across and they run a chain across and down the cyclone fencing and back through the 
gate to secure the gate so it can't open."  RP (Apr. 13, 2010) at 35.  Another police officer 
testified that the gate was "kind of bowed out so you can slip through it" and that no trespassing 
signs were clearly posted on the gate.  RP (Apr. 13, 2010) at 12-13. 

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No. 41045-1-II

finished dealing with Mellor.  Grays Harbor County Sheriff Sergeant Don Kolilis arrived within a 

few minutes and assisted Aston with the suspects and the investigation.  The officers identified the 

second person at the scene as Michael Lukin, the owner of a white pickup truck referenced in the 

original 911 burglary-in-progress call.  The pickup was parked near the wrecking yard gate.  

Kolilis detained Lukin2 and put him in his patrol car.  Lukin told Kolilis that Mellor was "the one 

that went in there [and] he was doing that to steal items from the business." RP (Apr. 13, 2010) 

at 26.  Kolilis then entered the property to investigate the alleged burglary.  Kolilis noticed that 

some "big, plastic 55 gallon drums had been moved" and that fingerprints on a dusty window 

indicated that someone had attempted to enter one of the buildings.  RP (Apr. 13, 2010) at 7.  

Kolilis also saw that some items had been "kicked around" inside a building where a "door had 

been kicked in or broken in at a prior time because it had rust on it." RP (Apr. 13, 2010) at 7.  

       At some point during the investigation, Sergeant Kolilis read Mellor his Miranda3 rights.  

Mellor told him that "he had a friend that had worked at the [wrecking] business . . . and was 

hoping that [he] could possibly find him there.  And once he found out it was closed he decided 

that he wanted to look around the building." RP (Apr. 13, 2010) at 14.  

       Trooper Aston transported Mellor to jail.  During the car ride, Mellor told Aston that he 

was on release from the jail and that "he had a list of parts that he had gotten from his - his dealer - 

his drug dealer, that he was going to go get the parts to trade for meth." RP (Apr. 13, 2010) at 

2 The record does not indicate whether the State charged Lukin with a crime. 

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).  At trial, Sergeant 
Kolilis testified that he found out later that Trooper Aston had read Mellor his rights as well.  
Aston testified, "I read Mr. Mellor his constitutional rights and he understood those." RP (Apr. 
13, 2010) at 41.   

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No. 41045-1-II

69.  Mellor had a piece of paper with the name "Ricky" and a phone number on one side and a list 

of auto parts on the other.  RP (Apr. 13, 2010) at 55.  Aston recalled that, during the car ride, 

Mellor "was so amped up that we had a conversation that should take like four hours" in 25 

minutes.  RP (Apr. 13, 2010) at 69.  Aston also wrote in his incident report that Mellor 

"understood he wasn't supposed to be breaking into places and burglarizing them while using 

methamphetamine." RP (Apr. 13, 2010) at 70.  

       On October 1, the State charged Mellor with one count of second degree burglary and one 

count of VUCSA.    RCW 9A.52.030; RCW 69.50.4013(1).  Trial commenced on April 13, 2010.  

Although originally scheduled, the record clearly indicates that a CrR 3.5 hearing did not occur.  

The State concedes this point, attributing the error to its own oversight.  At trial, Mellor never 

objected to the admissibility of his inculpatory statements on voluntariness grounds and a number 

of such statements reached the jury through the testimony of Sergeant Kolilis and Trooper Aston.  

       In addition to Sergeant Kolilis and Trooper Aston, the State also called the manager of 

Rollins Auto Wrecking, Bruce Almont, to testify.  Almont testified that a "Rick Calhoun" had 

previously lived on the property about a year before the incident occurred.  RP (Apr. 13, 2010) at 

88.  Almont also testified that he did not know Mellor and that Mellor did not have permission to 

be on the property.  

       During closing arguments, Mellor's counsel maintained that Mellor was only guilty of 

criminal trespass, not burglary.  The trial court gave a lesser-included offense instruction for 

criminal trespass.  The jury found Mellor guilty of second degree burglary and possession of 

methamphetamine.  

       At sentencing, Mellor sought a prison-based drug offender sentencing alternative (DOSA).  

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No. 41045-1-II

The court granted this request, noting that Mellor had never availed himself of a DOSA.  The trial 

court sentenced Mellor to 29.75 months of prison-based DOSA for the burglary conviction and 

12 months confinement for the drug conviction to run concurrently.  The trial court also ordered 

Mellor to serve 29.75 months of community custody upon release.  Mellor timely appeals.  

                                        DISCUSSION4

Failure to Hold a CrR 3.5 Hearing

       Mellor contends, for the first time on appeal, that the trial court's failure to hold a pretrial 

CrR 3.5 hearing to determine the voluntariness of his custodial statements prejudiced him and that 

this court "cannot conclude that . . . Mr. Mellor knowingly, intelligently, and voluntarily waived 

his constitutional rights." Br. of Appellant at 32.  Because the record here reveals that police 

apprised Mellor of his Miranda rights and that Mellor voluntarily waived those rights, we hold the 

trial court's failure to hold a CrR 3.5 hearing was harmless.  

       The United States Supreme Court has made clear that "[a trial court's] procedures must 

. . . be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the 

confession, including the resolution of disputed facts upon which the voluntariness issue may 

depend."  Jackson v. Denno, 378 U.S. 368, 391, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964).  In 

Washington, CrR 3.5 hearings serve this function.  State v. Taylor, 30 Wn. App. 89, 92-93, 632 

P.2d 892 (1981) ("The purpose of a [CrR 3.5] proceeding is to allow the court, prior to trial, to 

rule on the admissibility of sensitive evidence."), review denied, 96 Wn.2d 1012 (1981).  

4 Both of Mellor's assignments of error relate to his second degree burglary conviction.  Mellor 
did not brief this court on issues related to the VUCSA conviction, and we affirm that conviction.  
RAP 10.3(a) ("The brief of the appellant . . . should contain under appropriate headings . . . (4) 
[a] separate concise statement of each error a party contends was made by the trial court, together 
with the issues pertaining to the assignments of error."). 

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No. 41045-1-II

       CrR 3.5 hearings are mandatory absent waiver by the defendant.  State v. Woods, 3 Wn. 

App. 691, 697, 477 P.2d 182 (1970) ("It is mandatory that before introducing evidence of any

custodial statement, the prosecution must offer to prove, in the absence of the jury, that the 

statement was freely given and is untainted by coercive influence.)."       But  "under proper 

circumstances the right to a voluntariness hearing . . . can be waived."  State v. Myers, 86 Wn.2d 

419, 425-26, 545 P.2d 538 (1976).  In addition, a voluntariness hearing is impliedly waived 

"'absent some contemporaneous challenge to the use of the confession'" during the trial.  State v. 

Rice, 24 Wn. App. 562, 566, 603 P.2d 835 (1979) (quoting Wainwright v. Sykes, 433 U.S. 72, 

86, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977)).  Moreover, "mere failure to hold a [CrR 3.5] 

hearing does not make" otherwise admissible confessions "inadmissible" and, where the record is 

sufficient, we may examine the record and make a voluntariness determination.  State v. Mustain, 

21 Wn. App. 39, 42-43, 584 P.2d 405 (1978).

       Here, the record indicates that Mellor waived his right to a CrR 3.5 hearing at trial.  Until 

his appeal, Mellor never contended that he made his inculpatory statements to Sergeant Kolilis 

and Trooper Aston involuntarily or as the product of police coercion.  On appeal, Mellor argues 

for the first time that evidence of his drug usage "shows that the superior court may not have 

admitted Mr. Mellor's statements had a CrR 3.5 hearing been held."      Br. of Appellant at 31.  

Having independently reviewed the record, we are not persuaded by this argument.  In 

determining the voluntariness of a confession, we look to the

       totality of the circumstances under which it was made.  Factors considered include 
       a defendant's physical condition, age, mental abilities, physical experience, and 
       police conduct.  A defendant's mental disability and use of drugs at the time of a 
       confession are also considered, but those factors do not necessarily render a 
       confession involuntarily.

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No. 41045-1-II

State v. Aten, 130 Wn.2d 640, 663-64, 927 P.2d 210 (1996) (footnotes omitted).  

       In Mellor's case, although the record clearly reflects that Mellor was under the influence 

of methamphetamine, the record also reflects that he cooperated with police after being read his 

Miranda rights twice, had an extended, coherent, and voluntary conversation with Trooper Aston 

while being transported to jail, and did not lack the mens rea to either commit burglary or the 

wherewithal to confess to burglary after being caught "in the act" by Aston.   

       Because our independent review of the record confirms that Mellor voluntarily spoke with 

police after receiving his Miranda warnings, and because Mellor failed to preserve this challenge 

for appeal, we find that the trial court's failing to hold a CrR 3.5 hearing did not unduly prejudice 

Mellor and his inculpatory statements were admissible.   

Ineffective Assistance of Counsel

       Mellor contends that his counsel provided ineffective assistance by (1) eliciting hearsay 

testimony that established Mellor's intent to steal property, (2) eliciting improper ER 404(b) 

character evidence that Mellor committed his offense while on furlough from jail, (3) failing to 

object to an officer's hearsay testimony about the vehicle at the crime scene, and (4) failing to 

object to Sergeant Kolilis's improper expert testimony.  Mellor argues that his counsel's deficient 

performance prejudiced him because the State would not have been able to establish the "intent"

element of the second degree robbery charge without counsel's mistakes.  Because Mellor cannot 

demonstrate that his counsel's alleged deficient performance prejudiced him, his ineffective 

assistance claim fails.  

       To prevail   on his ineffective assistance claim,  Mellor    must show both deficient 

                                               7 

No. 41045-1-II

performance and resulting prejudice.  Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984).  Counsel's performance is deficient if it fell below an objective 

standard of reasonableness.  State v. Stenson, 132 Wn.2d 668, 705-06, 940 P.2d 1239 (1997), 

cert. denied, 523 U.S. 1008 (1998).  Our scrutiny of counsel's performance is highly deferential; 

we strongly presume reasonableness.   State v. McFarland, 127 Wn.2d 322, 335, 899 P.2d 1251 

(1995).  To rebut this presumption, a defendant bears the burden of establishing the absence of 

any conceivable legitimate tactic explaining counsel's performance.  State v. Grier, 171 Wn.2d 17, 

33, 246 P.3d 1260 (2011).       To establish prejudice, a defendant must show a reasonable 

probability that the outcome of the trial would have differed absent the deficient performance.

State v. Thomas, 109 Wn.2d 222, 226, 743 P.2d 816 (1987).  "'A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.'"  Thomas, 109 Wn.2d at 226 

(emphasis omitted) (quoting Strickland, 466 U.S. at 694).  

       A.     Eliciting Improper Testimony from Sergeant Kolilis 

       First, Mellor contends that his defense counsel provided ineffective assistance by eliciting 

hearsay testimony from Sergeant Kolilis establishing an essential element of second degree 

burglary, intent to commit a crime.  

       To convict Mellor of second degree burglary, the State needed to prove beyond a 

reasonable doubt that he (1) entered or remained unlawfully in a building other than a vehicle or a 

dwelling (2) with the intent to commit a crime against a person or property therein.  RCW 

9A.52.030.  

       During cross-examination, Sergeant Kolilis testified,

       [Defense counsel]     Now, did you ever make any attempt to find out who 
              owned these items [found in Mellor's possession when he was arrested]?

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No. 41045-1-II

       A      No.
       Q      So you don't know who owned these?
       A      Well, I - I knew that they came from the business and were brought out 
              from the business based on - based on what office[r] - Trooper Aston told 
              me and based on what somebody else told me.
       Q      But you're the investigating officer, right?
       A      Yes.
       Q      You didn't make any attempts - other than hearing another officer say 
              something, you never made any attempt to ascertain who owned those 
              items?
       [A]    I can't answer this with the rules[5] that you gave me, Your Honor.
                      [The Court]:  All right.  You can answer if he asks a question. 
                      [Kolilis]:  Okay.  
       A      Mr. Lukin advised me that your client was the one that went in there and 
              took those items out and that he had taken other items out and that he 
              believed that he was doing that to steal items from the business.

RP (Apr. 13, 2010) at 25-26.

       Lukin's statement about Mellor's criminal intent would not have been admissible at trial as 

the statement was hearsay not subject to an admissibility exception.6 But assuming that defense 

counsel's performance fell below an objective standard of reasonableness in eliciting this 

testimony and Mellor has met the first prong of the Strickland test nevertheless, Mellor's 

ineffective assistance claim fails.7 Mellor has not met the prejudice prong of the Strickland test.  

5 The trial court had previously sustained an objection during the State's direct examination and 
explained to Sergeant Kolilis that he should only testify to his own observations.  

6 Hearsay is an out-of-court statement offered "to prove the truth of the matter asserted."  ER 
801(c).  We note as well that the confrontation clause bars admission of out-of-court accusations.  
State v. Shafer, 156 Wn.2d 381, 388, 128 P.3d 87 (quoting Crawford v. Washington, 541 U.S. 
36, 68, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004)), cert. denied, 549 U.S. 1019 (2006).

7 Although the State argues that defense counsel's questions "were obviously intended to follow-
up his previous questions intending to show that the sergeant did not do enough follow-up 
investigation about who actually owned the property in Mr. Mellor's possession and whether Mr. 
Mellor had permission to be on that property," the State misapprehends the law.  Br. of Resp't at 
6.  "The relevant question is not whether counsel's choices were strategic, but whether they were 
reasonable."  Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S. Ct. 1029, 145 L. Ed. 2d 985 
(2000).  Although we need not decide whether counsel's performance was deficient, we note that 
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No. 41045-1-II

       At trial, Trooper Aston testified that Mellor told him he "had a list of parts that he had 

gotten from his - his dealer - his drug dealer, that he was going to go get the parts to trade for 

meth."  RP (Apr. 13, 2010) at 69.  Aston also testified that, after asking Mellor whether he 

realized he should not be burglarizing places and using methamphetamine while on furlough from 

jail, Mellor responded, "[Y]eah, probably not." RP (Apr. 13, 2010) at 70.  Last, Aston testified 

that, while Mellor was in custody in the back of Aston's vehicle, Mellor told him where in the 

wrecking yard he had obtained the items that he was carrying when Aston first approached him.  

       As these voluntary confessions establish Mellor's intent to steal property, any reasonable 

trier of fact would conclude that Mellor's admissions of guilt provided sufficient evidence to 

convict him of the burglary.  State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). 

Counsel's deficient performance in eliciting Lukin's hearsay statements was harmless.  

       B.     Eliciting Improper ER 404(b) Character Evidence

       Second, Mellor contends that his defense counsel provided ineffective assistance by 

eliciting prejudicial, improper ER 404(b)8 character evidence indicating that he committed the 

burglary while on furlough from jail.  On redirect examination of Trooper Aston, the following 

interaction occurred:

       [The State]    Do you remember what he said to you in the car?
       [Aston]        There was lots of things he said to me.
       Q      Would you refer to your notes, please.  Page 3 of 3.
       A      During the transport?
       Q      Yes.

it was unreasonable for defense counsel to not move to strike Lukin's out-of-court accusations 
once Sergeant Kolilis finished answering the question or, even more fundamentally, to stop cross-
examination or request a sidebar when Kolilis himself warned the trial court that he could not 
answer the question without bringing in impermissible hearsay.

8 ER 404(b) reads, in part, "Evidence of other crimes, wrongs, or acts is not admissible to prove 
the character of a person in order to show action in conformity therewith."
                                               10 

No. 41045-1-II

       A      He - he had said that --
                      [Defense Counsel]:  Your Honor, I object.  This isn't redirect from 
              cross.  I never asked these questions.
                      [The State]:  Your Honor, this is basically on statements that Mr. 
              Mellor has said.  I would ask --
                      [The Court]:  Overruled.  I will allow it.
       [The State]    Go ahead.
       [Aston]        He - he was saying that he was out on release right now from the -
              from the jail, the detective from the county had signed him out.  He was 
              supposed to be working - working with the task force or the detectives --
                      [Defense Counsel]:  Objection.  Relevance.
                      [The Court]:  Sustained.  Disregard the last question and answer. 

RP (Apr. 13, 2010) at 67-68.  Despite successfully objecting to the State's line of questioning 

about Mellor's jail furlough, the following interaction occurred on recross:

       [Defense Counsel]     And isn't it also true that you said to him, don't you know 
              you're not supposed to be burglarizing places.  And he responded, yeah, 
              probably not?
       [Aston]        Yeah.  Because it had to go in context the reason why he wouldn't 
              let talk about a minute ago --
       Q      So those were --
       A      He was out, so we're trying to say if you're out, you're not supposed to be 
              breaking the law and using methamphetamine. 

RP (Apr. 13, 2010) at 70.  

       Assuming that Mellor's counsel provided ineffective assistance by eliciting this testimony, 

Mellor's ineffective assistance claim related to improper ER 404(b) evidence fails because Mellor 

has not established how, in light of his voluntary confession, the deficient performance prejudiced 

him.  Strickland, 466 U.S. at 692-93.  To establish this prong of the Strickland test, Mellor must 

show that, but for his counsel's deficient performance in eliciting this testimony, there is a 

reasonable probability that the outcome of his trial would have differed.  Thomas, 109 Wn.2d at

226.  

       Here, there is no discernable reason why Mellor's counsel would elicit this testimony.  

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No. 41045-1-II

Nevertheless, Mellor has failed to establish how Trooper Aston's reference to Mellor's admitting 

to being out of jail and using methamphetamines undermines our confidence in the jury's verdict 

finding him guilty of second degree burglary.  

       Mellor does cite to State v. Saunders, 91 Wn. App. 575, 958 P.2d 364 (1998), and State 

v. Escalona, 49 Wn. App. 251, 742 P.2d 190 (1987), for support although both of these cases are 

distinguishable.  Saunders   involved the State prosecuting a defendant for possession of 

methamphetamine and introducing improper ER 404(b) evidence related to a prior conviction for 

the same charge.  91 Wn. App. at 580.  And in similar fashion, in Escalona, a witness improperly 

testified to Escalona's prior criminal history of violence during Escalona's trial for another violent 

crime, second degree assault.  49 Wn. App. at 253.  Mellor has failed to show how testimony 

referring to his admission that he had been in jail for an unspecified crime prejudiced him in a 

manner analogous to that demonstrated by the defendants in Saunders and Escalona.  Viewed 

against the backdrop of the evidence in the record, which included being caught in the act of 

taking items from the wrecking yard, we find that Mellor has failed to establish a reasonable 

probability that his trial outcome would have differed but for inclusion of the        identified 

impermissible ER 404(b) evidence elicited from Trooper Aston.  

       C.     Hearsay Exception for Context of Police Investigation

       Third, Mellor contends that defense counsel provided ineffective assistance because 

counsel did not object on hearsay grounds when both Trooper Aston and Sergeant Kolilis referred 

to a white pickup truck at the crime scene associated with the initial burglary in progress call 

made to police.  Testimony that would otherwise be hearsay may be admissible for the limited, 

nonhearsay purpose of providing background or context regarding the events leading to the police 

                                               12 

No. 41045-1-II

investigation, but not to prove the truth of the matter asserted.  State v. Moses, 129 Wn. App. 

718, 726-27, 119 P.3d 906 (2005), review denied, 157 Wn.2d 1006 (2006).      Because references 

to the original 911 police call were admitted for this limited, nonhearsay purpose -- to show why 

police went to Rollins' Auto Wrecking -- Mellor's counsel's performance was not deficient for not 

making such an objection and this ineffective assistance of counsel argument fails.

       D.     Fingerprints and Footwear Impressions

       Last, Mellor contends that defense counsel provided ineffective assistance because he did 

not object to "Sergeant Kolilis's expert opinions about when fingerprints and footwear 

impressions were placed at the crime scene despite the lack of any evidence that the sergeant was 

an expert on dating fingerprints or footwear impressions."    Br. of Appellant  at 19.  Without 

deciding whether Kolilis's testimony improperly involved expert opinions rather than mere 

observations of an experienced police officer, any rational trier of fact would have determined that 

the State met the burden of establishing that Mellor entered or remained unlawfully on the 

property.  Trooper Aston found Mellor inside the locked property and the property manager 

testified that Mellor did not have permission to be there.  In addition, Mellor's voluntary, 

noncustodial statements to Aston that he did not have permission to be on the property, 

conclusively established this element.  

       Sergeant Kolilis's testimony did not go to the intent to commit a crime element of the 

burglary -- the only disputed issue in this case -- and any prejudicial effect Kolilis's testimony about 

fingerprints or footwear impressions may have had was harmless.  Because overwhelming 

evidence established that Mellor was impermissibly trespassing on the property, and was found 

carrying items belonging to the wrecking yard, this claim fails.

                                               13 

No. 41045-1-II

       Mellor has not established that either the trial court's failure to hold a CrR 3.5 hearing or 

his counsel's deficient performance prejudiced him.  We hold the errors were harmless and affirm 

his convictions. 

       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 in accordance with RCW 2.06.040, it 

is so ordered.

                                                 QUINN-BRINTNALL, J.
We concur:

VAN DEREN, J.

WORSWICK, A.C.J.

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