State v. Clark-El

• Decision Date: 07 November 2016
• Docket Number: No. 73523–3–I
• Citation: State v. Clark-El, 196 Wash.App. 614, 384 P.3d 627 (Wash. App. 2016)
• Court: Washington Court of Appeals
• Parties: State of Washington, Respondent, v. Randolph Cartier Clark–El, Appellant.

196 Wash.App. 614

384 P.3d 627

State of Washington, Respondent,

v.Randolph Cartier Clark–El, Appellant.

No. 73523–3–I

Court of Appeals of Washington, Division 1.

FILED: November 7, 2016

Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave., Ste. 701, Seattle, WA, 98101–3647, Randolph Cartier Clark–El(Appearing Pro Se), Doc # 898313, Coyote Ridge Correction Complex, P.O. Box 769, Connell, WA, 99326, for Appellant.

Kimberly Anne Thulin, Whatcom County Prosecutor's Office, 311 Grand Avenue, Suite 201, Bellingham, WA, 98225–4038, for Respondent.

Becker, J.¶1 When a defendant is charged with delivering a controlled substance, the identity of the substance is an essential element that must be stated in the to-convict instruction if it increases the maximum sentence the defendant will face upon conviction.In such a case, omission of the essential element is subject to harmless error analysis as to the conviction but not as to the sentence.

FACTS

¶2 Police officers were conducting undercover drug law enforcement in Bellingham on the evening of October 30, 2014.One of the officers testified that he approached a man on the street and asked “if he had any clear, which is street slang for methamphetamine.”Agreement was reached on the price of $20.The officer handed over the cash, and the seller “gave me a small bag containing what appeared to be methamphetamine....Clear, shard-like substance.”The officer put the drugs in his left sock and later did a field test that indicated the drugs were methamphetamine.The drugs were booked into evidence and sent to the Washington State Patrol for forensic analysis.

¶3 The officers recognized the man from previous encounters and identified him as Randolph Clark–EI.Police arrested Clark–EI some weeks later, after they had concluded their undercover operation.

¶4The State charged Clark–EI with one count of delivery of a controlled substance, “to-wit: Methamphetamine ... which violation is a class B felony.”During a short jury trial, Clark–EI did not testify and he did not attempt to undermine the evidence that a sale of methamphetamine had taken place.His defense was that the officers misidentified him as the seller.The jury returned a verdict finding him guilty of the crime of delivery of a controlled substance.The court entered a judgment of guilty of delivery of a controlled substance under RCW 69.50.401(2)(b)(methamphetamine, a class B felony) and sentenced him for that offense.

¶5 Clark–EI appeals.He contends his conviction and sentence must be reversed because the to-convict instruction did not identify the substance he was accused of selling.

OMISSION OF ESSENTIAL ELEMENT

¶6 A to-convict instruction must include all essential elements of the crime charged.State v. Shelley Sue Smith, 131 Wash.2d 258, 263, 930 P.2d 917(1997), citingState v. Emmanuel, 42 Wash.2d 799, 819, 259 P.2d 845(1953).When the identity of a controlled substance increases the statutory maximum sentence which the defendant may face upon conviction, that identity is an essential element.State v. Goodman, 150 Wash.2d 774, 778, 83 P.3d 410(2004);State v. Sibert, 168 Wash.2d 306, 311–12, 230 P.3d 142(2010)(plurality opinion).Crimes involving methamphetamine are class B felonies, punishable by sentences up to 10 years, whereas crimes involving certain other controlled substances are class C felonies, punishable by sentences up to 5 years.RCW 69.50.401(2)(b), (c);RCW 9A.20.021.Under Goodman and Sibert, the identity of the controlled substance allegedly sold by Clark–EI was an essential element in this case.

¶7 Despite this well-settled law, the to-convict instruction did not require proof that the controlled substance delivered was methamphetamine.

To convict the defendant of the crime of delivery of a controlled substance, each of the following elements of the crime must be proved beyond a reasonable doubt:

(1) That on or about the 30th day of October 2014, the defendant delivered a controlled substance;

(2) That the defendant knew that the substance delivered was a controlled substance; and

(3) That the acts occurred in the State of Washington.

¶8 Although Clark-EI did not object to the instruction at trial, he is entitled to review.Omitting an element from a to-convict instruction is an error “of sufficient constitutional magnitude to warrant review when raised for the first time on appeal.”State v. Mills, 154 Wash.2d 1, 6, 109 P.3d 415(2005).Our review is de novo.State v. Brooks, 142 Wash.App. 842, 848, 176 P.3d 549(2008);Sibert, 168 Wash.2d at 311–12, 230 P.3d 142(plurality opinion).

¶9 In Sibert, a four-justice plurality of our Supreme Court held that the failure to specify methamphetamine in the to-convict instruction was not error when (1) the to-convict instruction “incorporated the drug identity by reference to the charging document, which specified methamphetamine,” and (2)“that drug and only that drug was proved at trial.”Sibert, 168 Wash.2d at 309–10, 317, 230 P.3d 142(plurality opinion).With the additional vote of a fifth justice who concurred in the result only, the plurality affirmed the defendant's conviction and sentence.

¶10Sibert does not compel us to hold that the instruction was free of error.The Sibert plurality based its holding, in part, on the fact that “as charged” language appeared in the to-convict instruction.The to-convict instruction here did not include equivalent language.More significantly, a plurality opinion “has limited precedential value and is not binding on the courts.”In re Pers. Restraint of Isadore, 151 Wash.2d 294, 302, 88 P.3d 390(2004).

It is not possible to assess the correct holding of an opinion signed by four justices when, as here, the fifth vote, concurring in the result only, is unaccompanied by an opinion.Kailin v. Clallam County, 152 Wash.App. 974, 985, 220 P.3d 222(2009).Shelle y Sue Smith, Emmanuel, and Mills continue to be leading cases holding that it is error to give a to-convict instruction that does not contain all elements essential to the conviction.Following those cases, we find error.

¶11 The error does not necessarily require reversal of the conviction for delivery of methamphetamine.Under the federal constitution, an erroneous jury instruction may be subject to harmless error analysis.Neder v. United States, 527 U.S. 1, 4, 119 S.Ct. 1827, 144 L.Ed.2d 35(1999);State v. Brown, 147 Wash.2d 330, 332, 58 P.3d 889(2002), followingNeder.A jury instruction that omits an essential element is harmless if it appears beyond a reasonable doubt the error did not contribute to the verdict.Brown, 147 Wash.2d at 341, 58 P.3d 889.The omitted element must be supported by “uncontroverted evidence,” and the reviewing court must be able to “ ‘conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error.’ ”Brown, 147 Wash.2d at 341, 58 P.3d 889, quotingNeder, 527 U.S. at 19, 119 S.Ct. 1827.

¶12 Here, methamphetamine was the only controlled substance the prosecution proved.Neither the State nor the defense suggested that the substance the undercover officer purchased was anything except methamphetamine.Using the Neder harmless error test, we conclude the jury's verdict would necessarily have been the same if the to-convict instruction had specified methamphetamine.

¶13 Clark–EI argues it is inconsistent with the Washington Constitution to apply harmless error analysis to the omission of an essential element from the to-convict instruction.He contends the error is reversible per se under state law.

¶14 States are free to interpret their constitutions as providing greater protection to individual rights than the federal constitution provides.State v. Gunwall, 106 Wash.2d 54, 59, 720 P.2d 808(1986).The Washington Constitution has a provision that, like the Sixth Amendment, guarantees the right to an impartial jury.WASH. CONST. art. I, § 22.It also has a separate section providing that the right of trial by jury “shall remain inviolate.”WASH. CONST. art. I, § 21.With the distinct language of article I, section 22, our constitution is more protective of the jury trial right than is the federal constitution.State v. Russell L. Smith, 150 Wash.2d 135, 151, 75 P.3d 934(2003), cert. denied, 541 U.S. 909, 124 S.Ct. 1616, 158 L.Ed.2d 256(2004).The scope of the right “must be determined from the law and practice that existed in Washington at the time of our constitution's adoption in 1889.”Russell L. Smith, 150 Wash.2d at 151, 75 P.3d 934.

¶15 It has not been decided whether the scope of Washington's jury trial right is broad enough to preclude absolutely a conviction obtained in a jury trial when the jury was not instructed on an essential element of the crime.In Sibert, as in Brown, the decision to affirm the convictions did not rest upon an analysis of the stateconstitution.¹

¶16Justice Sanders, dissenting in Sibert, addressed the issue of harmless error analysis under the stateconstitution when he argued that our constitution and precedent “favor the pre-Brown paradigm” of automatic reversal whenever an essential element is omitted in a to-convict instruction.Sibert, 168 Wash.2d at 329, 230 P.3d 142(Sanders, J., dissenting).But Justice Sanders' dissent did not discuss Washington law and practice at the time the stateconstitution was adopted.

¶17Justice Fairhurst has addressed the issue in two dissenting opinions, State v. Williams–Walker, 167 Wash.2d 889, 902–20, 225 P.3d 913(2010)(Fairhurst, J., dissenting), andState v. Recuenco, 163 Wash.2d 428, 442–47, 180 P.3d 1276(2008)(Fairhurst, J., dissenting).In both cases, the majority found that a firearm enhancement imposed by the trial court at sentencing exceeded the authority provided by the jury's special findings, a type of error that can never be harmless.Williams–Walker, 167 Wash.2d at 902, 225 P.3d 913;Recuenco, 163 Wash.2d at 440–42, 180 P.3d 1276.Justice Fairhurst, on the other hand,...