State v. Dent
| Decision Date | 10 March 1994 |
| Docket Number | 60235-2,Nos. 59919-0,s. 59919-0 |
| Citation | 123 Wn.2d 467,869 P.2d 392 |
| Parties | The STATE of Washington, Respondent, v. Roland C. DENT, Petitioner. The STATE of Washington, Respondent, v. Carlos A. BALCINDE, Appellant. |
| Court | Washington Supreme Court |
Donna R. McNamara, Seattle, for petitioner.
Washington Appellate Defender Ass'n, Andrew P. Stanton, Seattle, for appellant.
Seth R. Dawson, Pros. Atty., Seth Aaron Fine, Deputy Pros. Atty., Everett, for respondent.
Defendants Dent and Balcinde were charged with conspiracy to commit first degree murder. Both defendants were convicted at a joint trial. The two primary issues in this case were raised by both defendants. These issues are: (1) how the jury should be instructed as to the meaning of the "substantial step" element of a conspiracy, and (2) whether the trial court erred in refusing to instruct the jury that venue must be proved beyond a reasonable doubt. Balcinde raised three additional issues: (3) whether the State presented sufficient evidence of a "substantial step", (4) whether the trial court erred in admitting Dent's out-of-court statements against Balcinde, and (5) whether the trial court erred in denying Balcinde's motions for mandatory or discretionary severance. We hold that the trial court's instructions to the jury were proper, that the State presented sufficient evidence of a "substantial step", that the issue of use of Dent's out-of-court statements was not properly raised, and that the trial court properly denied severance. We, therefore, affirm the convictions.
Roland C. Dent and Carlos A. Balcinde were charged with conspiring to murder Dent's former girlfriend, Ann Powell. In late 1989 and early 1990, while on parole from an earlier conviction, Dent had a relationship with Powell. On February 22, 1990, Dent's parole was revoked based on an accusation made by Powell to Dent's parole officer that Dent had assaulted her. Following Powell's accusation, Dent was initially incarcerated in the King County Jail. Balcinde was also in the King County Jail at that time. It was during this time, when the codefendants were both in the King County Jail, that the conspiracy is alleged to have been formed. On February 23, 1990, Dent was transferred to the Shelton Corrections Center.
After his transfer, Dent contacted his then girlfriend, Joyful Tryon, to seek her help in communicating with Balcinde to advance the murder plan. Through numerous phone calls and letters, he asked her to (1) forward letters from Dent to Balcinde using a different or false return address; (2) give her handgun to Balcinde upon his release, after removing the serial number and reporting it stolen; (3) set aside $300 to $400 to pay Balcinde; (4) pick Balcinde up from the King County Jail upon his release; (5) show Balcinde a videotape from which he could identify Powell; and (6) show Balcinde where Powell was then residing. In one telephone conversation, Tryon asked what the gun was for, and Dent told her that "it was gonna [sic ] be used for Ann [Powell]." Verbatim Report of Proceedings, at 522-23. During the time between Dent's transfer to the Shelton facility and Balcinde's release, Tryon and her sons also received phone calls from Balcinde.
During the time Tryon was receiving communications from codefendants, her sons became concerned that Dent was trying to involve her in some type of illegal activity. After they persuaded her to tell them what was being planned, they went to the police. After meeting with the police, Tryon agreed to cooperate with the police. With Tryon's cooperation, the investigating officers recorded a call from Dent to Tryon on March 15, 1990, pursuant to an order authorizing intercept. During the conversation, Tryon asked Dent if it was necessary to go through with "[p]utting [Powell] in the ground". Verbatim Report of Proceedings, at 552-53. Defendant Dent answered Exhibit 13.
The police also had Tryon write a letter to Balcinde telling him that she would pick him up on March 19, 1990, when he was scheduled to be released. A deputy posing as Tryon was sent to meet Balcinde, and, pursuant to a second order authorizing intercept, the conversation between the deputy and Balcinde was recorded. In response to questions asked by the deputy, Balcinde stated that he was "going to do what you write me before", that Tryon was supposed to pay him $300, and that he was supposed to view a picture or videotape relating to a person named Ann. Verbatim Report of Proceedings, at 602. In addition, Balcinde asked the deputy posing as Tryon whether she had been in contact with "RC". 1 Following this conversation, Balcinde entered the deputy's car and was placed under arrest as he reached for the money offered by the deputy.
On March 21, 1990, both defendants were charged by information, in Snohomish County, with conspiracy to commit first degree murder. Dent was also charged with solicitation of first degree murder. Prior to trial, Dent moved for a change of venue to King County. On April 11, this motion was granted. However, on reconsideration, when counsel for Balcinde indicated opposition to the change of venue, the pretrial judge determined that, in order to prevent severance, the trial should be returned to Snohomish County. At that time, the solicitation charge against Dent was dismissed without prejudice.
Prior to and during trial, Balcinde made repeated motions to have his trial severed from Dent's trial. One of Balcinde's motions was based on speedy trial grounds. The speedy trial problem arose because Dent's original counsel was allowed to withdraw on grounds of conflict of interest. Dent then waived his speedy trial rights for purposes of a request for continuance to allow his new counsel time to adequately prepare. Trial was originally set for May 8, 1990, which would have been within Balcinde's 60-day speedy trial period which expired on May 21, 1990. Following substitution of counsel for Dent, trial was continued until July 30, 1990. Balcinde's motion for severance was denied.
During trial numerous letters and other out-of-court statements of Dent and Tryon were admitted over hearsay objections by Balcinde. Exhibit 14 consisting of eight letters from Dent to Tryon was admitted. A portion of these consisted of Dent's instructions to Tryon on assisting Balcinde. Also admitted was exhibit 13, the tape of the telephone conversation between Dent and Tryon. Balcinde asked for and was granted a limiting instruction as to portions of exhibit 14 and portions of Tryon's testimony, as well as other evidence, most of which did not concern Balcinde. However, concerned both that the limiting instruction did not cover all the objectionable evidence and that, given the volume of evidence to which the limiting instruction was applicable (five complete exhibits, portions of a sixth exhibit, and portions of the testimony of eight witnesses), the limiting instruction would not adequately prevent prejudice from admission of the statements, Balcinde again moved for severance. The court again denied his motion for severance.
Prior to the giving of the jury instructions, codefendants objected to the jury instruction defining the "substantial step" element of a conspiracy. The court rejected the instruction proposed by both defendants which defined "substantial step" as "more than mere preparation". Balcinde's Clerk's Papers, at 41.
While the court was reading the instructions to the jury, Balcinde interrupted to "reserve an objection" to the "to convict" instruction. After the court completed the reading of the instructions, Balcinde explained that his objection was to the failure of the instruction to require proof of venue. At that time, Dent expressed his desire to join in Balcinde's objection. The court held that no change to the "to convict" instructions was required.
The jury found both defendants guilty of conspiracy to commit first degree murder. Dent appealed his conviction. The Court of Appeals found that the trial court's instructions to the jury were proper and upheld his conviction. State v. Dent, 67 Wash.App. 656, 840 P.2d 202 (1992). Dent's case is before this court on his petition for review of the Court of Appeals' decision. Balcinde's case was transferred to this court following certification by the Court of Appeals pursuant to RAP 4.3.
The first issue presented on review is whether the trial court properly refused to give defendant's proposed instruction which provided that the "substantial step" element of a conspiracy requires "more than mere preparation". An individual commits conspiracy when
with intent that conduct constituting a crime be performed, he [or she] agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.
(Italics ours.) RCW 9A.28.040(1). The trial court instructed the jury that a "substantial step" is "conduct which strongly indicates a criminal purpose". Instruction 11. Dent's Clerk's Papers, at 1475.
Defendants' proposed instruction is identical to WPIC 100.05, which defines the "substantial step" element of an attempt as "conduct which strongly indicates a criminal purpose and which is more than mere preparation." WPIC 100.05. To support defendants' argument that the same definition of "substantial step" is applicable in the conspiracy context, the defendants rely on the note on use of WPIC 110.01, the pattern jury instruction defining criminal conspiracy, which refers to WPIC 100.05 for a definition of "substantial step". WPIC 110.01 note on use.
At oral argument, the State argued that WPIC 100.05 may not even accurately define "substantial step" for attempt...
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