State v. Colquitt

• Decision Date: 29 June 2006
• Docket Number: No. 32129-7-II.,32129-7-II.
• Citation: 137 P.3d 892,133 Wn. App. 789
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Mack Clarance COLQUITT, Appellant.

137 P.3d 892

133 Wn. App. 789

STATE of Washington, Respondent, v. Mack Clarance COLQUITT, Appellant.

No. 32129-7-II.

Court of Appeals of Washington, Division 2.

June 29, 2006.

Mary Katherine Young High, Attorney at Law, Tacoma, WA, for Appellant.

Kathleen Proctor, Pierce County Prosecuting Attorney Office, Tacoma, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 Mack Clarance Colquitt appeals his conviction for possession of a controlled substance, cocaine, following his termination from a drug court program. The agreement Colquitt entered into to participate in drug court was neither a stipulation that the substance in the underlying charge was a controlled substance, nor a stipulation to the sufficiency of the evidence. And, although he agreed that the police report that included a field test of the substance could be admitted, there were no laboratory test results. We hold that the police report and field test were not sufficient evidence of a controlled substance. We reverse and remand to vacate the conviction.

¶ 2 In September 2002, subsequent to an arrest on an unrelated charge, a corrections officer searched Colquitt's clothing during the booking process at the Pierce County jail and found a small plastic bag with several white, rock like items in his rear pants pocket. The arresting officer then examined the items; in his report, he stated that the substance "appeared to be `rock cocaine.'" Clerk's Papers (CP) at 59. He then conducted a field test, which tested positive for the presence of cocaine. Having already been given his Miranda¹ rights, Colquitt stated that he did not want to make a statement regarding the substance.

¶ 3 That same day, the State charged Colquitt with unlawful possession of a controlled substance. Colquitt then filed a petition to participate in a drug program, which the trial court granted.² Colquitt signed an agreement in which the trial court promised to dismiss the unlawful possession charge against him if he successfully completed the drug program. But if Colquitt failed to complete the program, he agreed to proceed with a bench trial based solely on the facts in the police report and the laboratory reports. The State never conducted any laboratory tests of the items found on Colquitt.

¶ 4 In his petition to participate in drug court, Colquitt waived: (1) the right to a speedy trial under CrR 3.3; (2) the right to a public trial by an impartial jury; (3) the right at trial to hear and question the witnesses who testify against him; (4) the right to have witnesses testify for him; (5) the right to testify at trial; (6) the right to contest the stop and/or search and/or the voluntariness of any statement he may have given in his case; and (7) the right to good behavior release on sanction/contempt time served while in drug court. While Colquitt stipulated to a bench trial based solely on the police report and the laboratory reports, he did not stipulate to the sufficiency of the facts contained in these reports to support a conviction. Nor did he ever admit to possessing cocaine. Furthermore, the waiver indicates that the defendant must waive the right to public trial by a jury "in the county where the crime is alleged to have been committed." CP at 14. (Emphasis added). The use of the term "alleged" in the drug court petition form indicates that the parties to the agreement did not consider Colquitt to have admitted guilt. CP at 14.

¶ 5 Because the statute addressing drug courts does not mandate forms or procedures, counties are free to develop their own forms. Looking to RCW 10.05 for guidance, we note that Pierce County's forms do not incorporate the safeguards of the deferred prosecution statute. But, the drug court statute essentially authorizes a deferred prosecution. Pierce County's agreement does not require a confession and stipulation for entry into drug court, wherein the defendant would freely agree and admit each allegation and stipulation contained in the petition. Nor is there an additional stipulation that the confession and the police reports constitute proof beyond a reasonable doubt that the defendant was guilty of the offense charged and that the defendant has no affirmative defense to the charge. These agreements would have avoided any question of the identity of the controlled substance. These additional agreements are consistent with those agreements in the deferred prosecution statute in district court under chapter 10.05 RCW.

¶ 6 Colquitt failed to comply with the conditions required to remain enrolled in the drug program and the trial court terminated his enrollment. Based solely on the evidence contained in the police report, the trial court found Colquitt guilty of unlawful possession of the controlled substance, cocaine.

ANALYSIS

¶ 7 Colquitt argues that the evidence was insufficient to support his conviction of unlawful possession of the controlled substance, cocaine. In support of this argument, Colquitt notes that the State did not conduct a laboratory test and, therefore, the court did not have any laboratory reports before it. The police report, the only evidence offered to establish the identity of the substance, contains a statement that the officer thought the substance appeared to be cocaine and that the substance tested positive in a field test for cocaine. We agree with Colquitt that speculation and an unverified field test, with nothing more, is insufficient to support a conviction.³

¶ 8 Colquitt's conviction in drug court can be compared to previous cases involving deferred prosecution under chapter 10.05 RCW. State v. Melick, 131 Wash.App. 835, 844-45, 129 P.3d 816 (2006) (the court "may apply the principles of chapter 10.05 RCW to drug court prosecutions") (citing State v. Cassill-Skilton, 122 Wash.App. 652, 658, 94 P.3d 407 (2004) (although drug court statute contains no provisions for operating the program, the court can use chapter 10.05 RCW for guidance)). In deferred prosecution cases where the defendant stipulates to admission of police reports but does not stipulate to guilt, the trial court can use the police report to find the defendant guilty only "if the evidence therein supports conviction." State v. Shattuck, 55 Wash.App. 131, 134, 776 P.2d 1001 (1989). The State, therefore, still retains the burden of proof. Shattuck, 55 Wash.App. at 135, 776 P.2d 1001.

¶ 9 Colquitt never stipulated to the sufficiency of the evidence presented in the police report. By contrast, for a defendant to qualify for a deferred conviction in district court, he is required by statute not only to stipulate to the admissibility of police reports, but also to the sufficiency of the facts contained therein to support a finding of guilt. RCW 10.05.020. Before RCW 10.05.020 required a stipulation to the sufficiency of the facts, the court was not foreclosed from examining the sufficiency of the evidence. Abad v. Cozza, 128 Wash.2d 575, 587-88, 911 P.2d 376 (1996); former RCW 10.05.020 (1994), modified by former RCW 10.05.020 (1996) (inserting a requirement for a stipulation to the sufficiency of the facts in subsections (2) and (3)), modified by RCW 10.05.020. We can examine the sufficiency of the evidence in this case. Colquitt did not stipulate to the sufficiency of the evidence and a drug court agreement, like a deferred prosecution, is not tantamount to a guilty plea. See Abad, 128 Wash.2d at 579, 911 P.2d 376 (citing State v. Higley, 78 Wash. App. 172, 187, 902 P.2d 659, review denied, 128 Wash.2d 1003, 907 P.2d 296 (1995)).

¶ 10 Nevertheless, the State argues that Colquitt waived the right to challenge the validity of the field tests when he stipulated to the admissibility of the police report, and faults him for raising the issue of sufficiency for the first time on appeal. Two factors are evident. Colquitt did not stipulate to the sufficiency of the evidence, even though he waived his right to testify or call any witnesses on his behalf. And, although he could have challenged the sufficiency of the evidence, sufficiency may be raised for the first time on appeal. RAP 2.5(a)(3); City of Seattle v. Slack, 113 Wash.2d 850, 859, 784 P.2d 494 (1989) ("Due process requires the State to prove its case beyond a reasonable doubt; thus, sufficiency of the evidence is a question of constitutional magnitude and can be raised initially on appeal.") (citing State v. Baeza, 100 Wash.2d 487, 488, 670 P.2d 646 (1983)). Review by this court is appropriate.

¶ 11 Due process requires the State to prove beyond a reasonable doubt all the necessary facts of the crime charged. State v. Hundley, 126 Wash.2d 418, 421, 895 P.2d 403 (1995) (citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and State v. Acosta, 101 Wash.2d 612, 615, 683 P.2d 1069 (1984)). Evidence is sufficient to support a conviction when, viewed in the light most favorable to the State, any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. State v. Bryant, 89 Wash.App. 857, 869, 950 P.2d 1004 (1998) (citing State v. Rempel, 114 Wash.2d 77, 82, 785 P.2d 1134 (1990)), review denied, 137 Wash.2d 1017, 978 P.2d 1100 (1999). In a sufficiency of the evidence claim, the defendant admits the truth of the State's evidence and all inferences that reasonably can be drawn from that evidence. State v. Salinas, 119 Wash.2d 192, 201, 829 P.2d 1068 (1992) (citing State v. Theroff, 25 Wash.App. 590, 593, 608 P.2d 1254, aff'd, 95 Wash.2d 385, 622 P.2d 1240 (1980)). Nevertheless, the existence of a fact cannot rest upon guess, speculation, or conjecture. State v. Hutton, 7 Wash.App. 726, 728, 502 P.2d 1037 (1972) (citing State v. Carter, 5 Wash. App. 802, 490 P.2d 1346 (1971), review denied, 80 Wash.2d 1004 (1972)).

¶ 12 Generally, a chemical analysis is not vital to uphold a conviction for possession of a controlled substance. See State v. Hernandez, 85 Wash.App. 672, 675, 935 P.2d 623 (1997) (circumstantial evidence and lay testimony...