State v. Valladares

• Decision Date: 02 June 1983
• Docket Number: No. 48540-2,48540-2
• Citation: 99 Wn.2d 663,664 P.2d 508
• Parties: The STATE of Washington, Respondent, v. Rudolpho VALLADARES, Petitioner.
• Court: Washington Supreme Court

Page 663

99 Wn.2d 663

664 P.2d 508

The STATE of Washington, Respondent, v. Rudolpho VALLADARES, Petitioner.

No. 48540-2.

Supreme Court of Washington,

En Banc.

June 2, 1983.

Jeffrey Steinbron, Timothy K. Ford, Seattle, Law & Justice, Gaither Kodis, Spokane, for petitioner.

Patrick Sutherland, Thurston County Prosecutor, Gary R. Tabor, Deputy Pros. Atty., Olympia, for respondent.

STAFFORD, Justice.

Petitioner Rudolpho Valladares was convicted by a jury on charges of possession, delivery, and conspiracy to deliver cocaine, a controlled substance. The Court of Appeals affirmed the convictions. State v. Valladares, 31 Wash.App. 63, 639 P.2d 813 (1982). We affirm the Court of Appeals with respect to the convictions for possession and delivery but reverse the Court of Appeals on the conspiracy charge.

Late in December 1978, Barbara Campbell called the Longview Police Department and asked to talk to an officer. On December 29, Detective Fisher contacted Campbell in the hospital where she was recovering from a suicide attempt. Campbell began the conversation by informing Fisher she had been involved in cocaine trafficking in the Kelso-Longview area. She told him that for "about the last two months, and two months prior to that time" her source had been petitioner, Rudolpho "Rudy" Valladares, a major drug dealer. Campbell expressed concern that she was unable to make a required $1,000 payment for cocaine she had received on consignment from Valladares. Fisher, who was not acquainted with either Campbell or Valladares, requested assistance from Chief Inspector Sexton of the Washington State Patrol Drug Control Assistance Unit.

After interviewing Campbell, Agent Sexton offered to pay her debt to Valladares in exchange for an introduction. Sexton was to assume the identity of a pimp from Vancouver.

The meeting took place in a Longview bar on January 8, 1979. Valladares, Campbell, Sexton and a female undercover agent were present. Sexton began the conversation by offering to supply prostitutes for a Seattle "key club" with which Valladares was allegedly connected. Thereafter, according to witnesses present at the meeting, Valladares said "Say, Barbara mentioned that you may also be interested in some of my cocaine". Agent Sexton expressed an interest "if it's good quality and the price is right". Valladares assured him there was a high demand for his cocaine because of its extremely high quality. In fact, he claimed to be "dealing approximately 6 pounds of cocaine a week". According to the witnesses, Valladares bragged he had the cocaine market cornered in the Kelso-Longview area. Valladares was unable to state an exact price because he was leaving for Colombia the next day to negotiate the price for another shipment. Ultimately Sexton made preliminary arrangements for a purchase.

A few minutes later Valladares and Sexton met outside in Sexton's car. Valladares explained he did not want Barbara Campbell involved in their deal because of previous trouble collecting his money from her. When he mentioned Campbell owed him $1,000, Sexton offered him the money. Valladares accepted the funds, indicating that Sexton could work out that debt with Campbell any way he chose.

As negotiations continued over the next 3 months, Sexton told Valladares that he, Sexton, owed $240,000 to "the Las Vegas organized crime family", but that he might be able to persuade them to allow the next $80,000 installment to be invested in cocaine. Ostensibly to convince his "creditors" of the quality of the merchandise, Sexton purchased 1 ounce of cocaine for $1,900. He later purchased 2 ounces for "his girls".

Thereafter Neil Greppin, a federal drug enforcement agent, was brought in to pose as a Las Vegas "moneyman". Greppin told Valladares that Sexton would be allowed to invest in a cocaine deal only if Valladares could produce some kind of collateral to secure the transaction until a shipment could be delivered. A few days later Valladares introduced Sexton to Charles Minium, who agreed to supply a timber deed as security. Thereafter, Valladares agreed to sell Agent Greppin 2 pounds of cocaine for $50,000. It is of passing interest that Valladares suggested Sexton and he "cut" some of the cocaine with an adulterant, sell the extra, and split the profit.

On March 29, 1979, the parties met at a Thurston County truck stop to consummate the transaction. They sat in the agents' car, Valladares holding his briefcase. After a brief conversation, Minium assigned the timber deed to the agents and Valladares accepted from them a second briefcase containing $50,000. At that juncture, Valladares and Minium were arrested and taken to the police station.

Upon reaching the police station, the agents searched the briefcase that had initially been in Valladares' possession and found 7.2 grams of cocaine. They also searched the trunk of Valladares' car and discovered a suitcase containing more cocaine and a cocaine testing kit. A search of Minium's person revealed some LSD.

Valladares was charged with the unlawful delivery of a controlled substance (cocaine); the unlawful possession of a controlled substance (cocaine); and, with Minium, was charged with conspiracy to commit the offense of delivery of a controlled substance (cocaine).

Valladares' trial counsel made an "Omnibus Application" for suppression of physical evidence in the State's possession based on an alleged illegal search. This would have included the warrantless searches of Valladares' briefcase and suitcase following his arrest. At the "Omnibus Hearing", however, Valladares' lawyer affirmatively withdrew the motion to suppress the physical evidence.

Prior to trial Valladares' attorney interviewed Barbara Campbell, who was expected to testify for the State. At the time she expressed some concern about testifying against Valladares. Shortly thereafter she disappeared and, despite a good faith effort to subpoena her, the prosecution was unable to obtain her presence at trial. Upon that turn of events defense counsel made a motion in limine to exclude, as hearsay, any statements made by Barbara Campbell to officers Sexton or Fisher. The trial court denied the motion, holding the statements were admissible under ER 804(b)(3), as statements against the penal interest of an unavailable declarant.

Following a joint trial of Valladares and Minium, the jury rejected an entrapment defense and found Valladares guilty of all three charges. On the other hand, Minium was found guilty of possession but not guilty of the conspiracy charge. All convictions were affirmed by the Court of Appeals. ¹

Valladares' petition for review raises three principal issues: (1) the admission of Barbara Campbell's inculpatory hearsay statement as a statement against penal interest under ER 804(b)(3); (2) the conviction of Valladares for conspiracy despite the acquittal of his alleged coconspirator; and, (3) the trial court's refusal to suppress evidence seized in the warrantless searches of Valladares' briefcase and suitcase.

I Admission of Inculpatory Hearsay Statements

The prosecution established that despite a good faith effort, it was impossible to obtain Barbara Campbell's presence. Thereafter the trial court permitted Sexton and Fisher to relate the inculpatory statements made to them by Campbell. They were deemed admissible under ER 804(b)(3).

First, Valladares urges this court to hold that hearsay statements made against penal interest which inculpate an accused are per se inadmissible. This position is not well taken. In State v. Parris, 98 Wash.2d 140, 654 P.2d 77 (1982) this court aligned itself with the weight of federal case authority holding that inculpatory statements are admissible under the same standard ER 804(b)(3) sets for exculpatory statements. United States v. Alvarez, 584 F.2d 694 (5th Cir.1978); see also United States v. Riley, 657 F.2d 1377 (8th Cir.1981); United States v. Palumbo, 639 F.2d 123 (3d Cir.1981); United States v. Garris, 616 F.2d 626 (2d Cir.), cert. denied, 447 U.S. 926, 100 S.Ct. 3021, 65 L.Ed.2d 1119 (1980).

In adopting the ER 804(b)(3) standard three basic prerequisites were delineated. First, the declarant must be unavailable despite good faith efforts to locate him or her. Second, the declarant's statement must so far tend to subject him or her to criminal liability that a reasonable person would not have made the statement unless he believed it to be true. Finally, the statement must be accompanied by corroborating circumstances indicating its trustworthiness. ² United States v. Sarmiento-Perez, 633 F.2d 1092, 1098 (5th Cir.1981). The first of the three requirements has been met. Clearly Campbell was the declarant. Further, there is no serious contention that she was available despite a good faith effort to locate her.

Valladares asserts, however, that the second prerequisite has not been met. It is urged Campbell's statements are not reliable because they were made under custodial circumstances and were not sufficiently against her penal interest. We do not agree.

Campbell was not in custody. Rather, she was a self-admitted patient in a hospital at the time she summoned Detective Fisher. Far from being given in a coercive atmosphere, Campbell's statement to Fisher was wholly voluntary. Later, she willingly repeated it to Agent Sexton. There is little question that, based on her own statement, Campbell could have been tried on any of several narcotic-related charges. In addition, there is no evidence either officer sought to offer immunity or some other reward for the statements. Under the attendant circumstances she had more to gain by telling the truth and any inaccuracy in her statement could easily have been discovered. Further, Sexton's offer to pay her debt to Valladares was made only after she had repeated the statement to him. Under the instant facts, we can only conclude the statements made to Detective Fisher and Agent Sexton so tended to subject...