State v. Brockob
| Decision Date | 28 December 2006 |
| Docket Number | No. 78571-6.,78571-6. |
| Citation | 150 P.3d 59,159 Wn.2d 311 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Michael Justin BROCKOB, Petitioner. State of Washington, Respondent, v. Dusten Wade Gonzales, Petitioner. State of Washington, Respondent, v. Jeremy Ray Cobabe, Petitioner. |
Reed Manley Benjamin Speir, Attorney at Law, University Place, WA, Thomas Edward
Doyle, Attorney at Law, Hansville, WA, Patricia Anne Pethick, Attorney at Law, Tacoma, WA, Michelle Bacon Adams, Attorney at Law, Port Orchard, WA, for Petitioner.
Michelle Hyer, Pierce County Prosecutor, Tacoma, WA, James C. Powers, Thurston County Prosecuting Attorney Office, Olympia, WA, Randall Avery Sutton, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.
¶ 1 These three appeals have been transferred to this court from the Court of Appeals, Division Two, and consolidated to determine two issues common to all three petitioners. First, whether there was independent evidence sufficient to corroborate the petitioners' incriminating statements to law enforcement officers under the corpus delicti rule. Second, whether there was sufficient evidence to support the convictions. Each case also presents other unrelated issues.
¶ 2 We conclude the independent evidence was insufficient to corroborate Michael Justin Brockob's incriminating statement under the corpus delicti rule and without Brockob's statement, there was insufficient evidence to support his conviction. We reverse Brockob's conviction and do not reach his unrelated issue.
¶ 3 We conclude the independent evidence was sufficient to corroborate Dusten Wade Gonzales' incriminating statement under the corpus delicti rule and there was sufficient evidence to support his conviction. We also conclude all but one of Gonzales' unrelated issues are without merit. We affirm Gonzales' conviction but remand to the trial court to strike the $100 felony deoxyribonucleic acid (DNA) collection fee.
¶ 4 We conclude the independent evidence was insufficient to corroborate Jeremy Ray Cobabe's incriminating statement under the corpus delicti rule but conclude there was, nevertheless, sufficient evidence to support his conviction. We also conclude Cobabe's unrelated issues are without merit. We affirm Cobabe's conviction.
¶ 5 In February 2004, Ryan Chamberlin and his partner, loss prevention officers (LPOs) at the Tacoma Fred Meyer store, observed Brockob pushing a shopping cart around the store and placing various items into a packing box in the shopping cart, including 24 to 30 packages of various kinds of cold medicines. As he walked around the store, Brockob removed the cold tablets from their packages and put them into his jacket pockets and slits in his jacket.1 Brockob placed the discarded cold medicine packages on a shelf in the outdoor garden department.
¶ 6 Brockob returned to the store from the garden department, put the other items he had in his cart back, and went toward the exit doors. After he passed the exit without paying for the cold medicine, the LPOs retained and handcuffed Brockob, brought him to the store security office, and called the police.
¶ 7 Tacoma Police Officer John Fecteau responded to the LPOs' call and went to the store's security office, where the LPOs had detained Brockob. Officer Fecteau saw 15 to 20 opened packages of Sudafed2 on the floor of the office and "a lot of Sudafed tablets" on the counter.3 Verbatim Report of Proceedings (Brockob) (Mar. 31, 2004) (BVRP) at 17. Officer Fecteau advised Brockob of his Miranda4 warnings, and asked Brockob if he would be willing to talk about what had happened. When asked if he took the Sudafed without paying for it, Brockob replied, "Yes, I did." Id. at 21. When asked if he was going to make methamphetamine with the Sudafed, Brockob replied, Id. Officer Fecteau took Brockob to jail and the store retained the Sudafed.
¶ 8 The State charged Brockob with one count of unlawful possession of pseudoephedrine and/or ephedrine with intent to manufacture methamphetamine under former RCW 69.50.440 (2003).5 Officer Fecteau and LPO Chamberlin were the only witnesses who testified at Brockob's trial. The State argued that Brockob intended to manufacture methamphetamine regardless of whether he manufactured it himself or gave the Sudafed to someone else to manufacture methamphetamine. Brockob's attorney argued that because there was insufficient evidence to show how many tablets Brockob had, there was no proof of intent to manufacture methamphetamine—the only intent the State could prove was to shoplift. Brockob was convicted.
¶ 9 Brockob's attorney filed a motion for a judgment notwithstanding the verdict and argued to the trial court that the State did not present any "corpus evidence" proving Brockob's specific intent to deliver the tablets and corroborating Brockob's incriminating statement. Clerk's Papers (Brockob) (BCP) at 28; BVRP (Mar. 31, 2004) at 6. The trial court denied the motion. The trial court sentenced Brockob under the drug offender sentencing alternative, RCW 9.94A.660, to 55 months of confinement and 55 months of community custody. Brockob appealed to Division Two of the Court of Appeals, arguing insufficient evidence to support the corpus delicti, insufficient evidence to support his conviction, and violation of his due process rights for failure to preserve the physical evidence.6
¶ 10 In August 2001, Officer Jim Black observed Gonzales driving a vehicle with a cracked windshield. A female passenger was in the vehicle with him. Officer Black ran a computer check on the vehicle and found that it was registered to a person named Jody Brosini and the license tabs were expired. Officer Black did not stop the vehicle immediately—he watched as the vehicle pulled into a gas station.
¶ 11 The female was driving when the vehicle left the gas station. Officer Black stopped the vehicle and asked both the driver and Gonzales for identification because Gonzales had been driving the vehicle earlier when Officer Black had noted the cracked windshield and expired vehicle registration. Although the female gave Officer Black a valid driver's license, Gonzales identified himself but said he did not have his license. Gonzales also told Officer Black that he did not have the registration or insurance for the vehicle yet because he was trying to buy the vehicle and had not made the changes. Officer Black ran a driver's check on both individuals and found that Gonzales had a suspended driver's license or suspended driving status.
¶ 12 Officer Black arrested Gonzales for driving with a suspended license and placed him in the back of his patrol vehicle. Officer Black searched the vehicle and seized a brown paper bag from under the front passenger seat containing three new sealed bottles of tablets containing ephedrine and seized from the backseat several loose unused coffee filters in two different sizes. He also seized one bottle of ephedrine tablets from the female companion.
¶ 13 Officer Black took Gonzales to the Olympia City Jail, advised him of his Miranda rights, which Gonzales waived, and informed Gonzales that possession of ephedrine could be a crime. Gonzales told Officer Black he had purchased the ephedrine for another individual named Lee and said that Lee would use the ephedrine to make methamphetamine. He also said Lee would sell some of the methamphetamine back to him (Gonzales) and that Lee had done this before. He said he would meet Lee near a dumpster to give him the ephedrine and would return when Lee had the methamphetamine.
¶ 14 The State charged Gonzales with one count of possession of ephedrine, pseudoephedrine, or pressurized gas with intent to manufacture methamphetamine under former RCW 69.50.440 (2000) and one count of attempted manufacture of methamphetamine under RCW 69.50.407 and former RCW 69.50.401(a)(1)(ii) (1998).7 The trial court subsequently dismissed the first count, for reasons unrelated to this appeal.
¶ 15 Before trial, Gonzales' attorney filed a motion in limine to exclude Gonzales' admissions to Officer Black, arguing that the State's other evidence did not satisfy the corpus delicti rule.8 The trial court delayed ruling on the question until it heard testimony from Frank Boshears, a forensic scientist from the Washington State Patrol Crime Laboratory. Boshears testified that ephedrine is an "immediate precursor to methamphetamine." Verbatim Report of Proceedings (Gonzales) (June 7, 2004) at 45. He explained that coffee filters are used to "extract[ ] out the pseudoephedrine or ephedrine ... and then filter out the parts that don't dissolve," leaving methamphetamine in the filter. Id. at 49. Boshears added that he had rarely seen a methamphetamine lab that did not use coffee filters. Id.
¶ 16 Following Boshears' testimony, Gonzales' attorney renewed his motion to exclude Gonzales' statements to Officer Black, and the trial court denied the motion. Gonzales' attorney also moved for a continuance so he could research the effect on the case of this court's recent ruling in City of Redmond v. Moore, 151 Wash.2d 664, 91 P.3d 875 (2004).9 The trial court denied the request but ruled that the defense could raise the issue post trial if Gonzales were convicted.
¶ 17 Gonzales' and Officer Black's testimony at trial substantially agreed regarding the traffic stop and arrest. Gonzales admitted driving the car with a suspended driver's license. Gonzales also admitted making the incriminating statements to Black; however, he claimed that the statements he made pretrial to Officer Black were lies and he had been trying to protect his female companion.
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