State v. Harris

• Decision Date: 05 November 1975
• Docket Number: Nos. 1667--I,1668--II,s. 1667--I
• Citation: 542 P.2d 122,14 Wn.App. 414
• Parties: The STATE of Washington, Respondent, v. Pamela HARRIS and Robert Harris, Appellants.
• Court: Washington Court of Appeals

Page 414

14 Wn.App. 414

542 P.2d 122

The STATE of Washington, Respondent, v. Pamela HARRIS and Robert Harris, Appellants.

Nos. 1667--II, 1668--II.

Court of Appeals of Washington, Division 2.

Nov. 5, 1975.

Review Denied Feb. 10, 1976.

James S. Witt, III, Tacoma, for appellants.

Joseph D. Mladinov, Donald F. Herron, Tacoma, for respondent.

REED, Judge.

Robert and Pamela Harris were convicted of felony possession of marijuana and possession of the same with intent to deliver. Both appeal from their convictions for possession with intent to deliver and Pamela Harris appeals from her conviction of felony possession.

On February 13, 1974, Pierce County Sheriff's Deputies

were executing a search warrant for the Harris home and any of their automobiles located thereat, when Mr. and Mrs. Harris arrived in a 1973 Oldsmobile driven by Mr. Harris, with his wife and minor child as passengers. Keys to the automobile's trunk were produced by 'either Mr. or Mrs. Harris' and found therein was an unmarked suitcase containing five 1-pound bags of marijuana. The house yielded several small pipes, some Zig-Zag cigarette papers, a number of 'roach clips,' a special smoking device in the form of an 'Uncle Sam bust,' and from the kitchen cabinet, a gram scale. The vehicle's certificate of registration was issued in the State of Oregon, showing Robert Harris as the owner and listing his address as Milwaukee, Oregon. Robert Harris was a United States Army Warrant Officer, stationed at Fort Lewis.

It was established at trial that Mrs. Harris drove the car on occasion and as recently as a day or two before the arrest. Both defendants denied ownership of the marijuana or knowledge of its presence in the car and claimed the items found in the home had been left there by one Ray, an army associate of Mr. Harris. Ray supported this story, admitting he had used the items for smoking marijuana and had brought them to the Harris home from his barracks to prevent their discovery. Ray testified he had driven the car on both the day before and the day of the arrest, but when questioned concerning his specific use of the automobile on those days and about any knowledge of the marijuana, Ray invoked his privilege against self-incrimination.

Prosecution testimony established that the value of the marijuana was approximately $115 per pound, that all items found in the home were commonly used in smoking marijuana, that marijuana is usually sold by the pound or in 'lids' of 20 grams each, and that 'gram scales' are commonly used to reduce bulk marijuana into smaller lots for sale. Robert Harris' commanding officer, Major Scavo, testified Harris had told him he intended to plead guilty.

Both defendants challenge the sufficiency of the evidence to support their convictions, and Robert Harris assigns additional error to the admission of Major Scavo's testimony.

We hold the evidence was not sufficient to sustain either verdict as to Pamela Harris, and reverse both of her convictions.

The general rule on possession is set forth in State v. Mathews, 4 Wash.App. 653, 656, 484 P.2d 942, 943 (1971) as follows:

Possession of narcotic drugs may be either actual or constructive. . . . Constructive possession is proved when the person charged with possession has dominion and control over either the drugs or the premises upon which the drugs were found.

See also State v. Potts, 1 Wash.App. 614, 464 P.2d 742 (1969); State v. Callahan, 77 Wash.2d 27, 459 P.2d 400 (1969).

While the fact that Robert Harris, as owner and driver of the car, had possession of the marijuana does not preclude a like finding as to Pamela Harris since possession of a controlled substance may be joint, State v. Weiss, 73 Wash.2d 372, 438 P.2d 610 (1968), State v. Wheatley, 10 Wash.App. 777, 519 P.2d 1001 (1974), her possession must necessarily be constructive since it was not actual. The only evidence tending to prove dominion and control on her part is circumstantial and consists of the fact that she was a passenger in the automobile and the deputy's testimony that he obtained the keys to the trunk from 'either Mr. or Mrs. Harris.' Turning next to her role as passenger in the vehicle, State v. Mathews, supra, 4 Wash.App. at 656, 484 P.2d at 943, states:

Whether a passenger's occupancy of a particular part of automobile would constitute dominion and control of either the drugs or the area in which they are found Would depend upon the particular facts in each case. Mere proximity to the drugs is not enough to establish constructive possession--it must be established that the defendant exercised dominion and control over either the drugs or the area in which they were found.

(Emphasis added.) See also State v. Callahan, supra.

We do not find her occupancy of the passenger portion of the vehicle sufficient under this test as she was completely separated from the locked trunk. The statement relating to production of the keys is too equivocal and therefore provides no more than a scintilla of evidence from which no permissible inference of dominion and control can be drawn. See State v. Liles, 11 Wash.App. 166, 171, 521 P.2d 973 (1974), where the court citing from State v. Melrose, 2 Wash.App. 824, 831, 470 P.2d 552, 557 (1970), states:

When substantial evidence is present, the drawing of reasonable inferences therefrom and the doing of some conjecturing on the basis of such evidence is permissible and acceptable. . . . If, however, the necessity for conjecture results from the fact that the evidence is merely scintilla evidence, then the necessity for conjecture is fatal.

(Citations omitted.)

Simple possession of a controlled substance, either actual or constructive, is a lesser-included offense within the crime of possession with intent to deliver. Since Pamela Harris cannot be said to have had possession in the first instance, her conviction on possession with intent to deliver, cannot stand. State v. Fitzpatrick, 5 Wash.App. 661, 491 P.2d 262 (1971) at 669.

In the case of Robert Harris, we commence with a recognition that bare possession of a controlled substance, absent other facts and circumstances, allows for no permissible inference of intent to deliver. Mere possession alone is just as consistent with an intent to make personal use of the substance. State v. Liles, supra, 11 Wash.App. at 170, 521 P.2d 973.

However, additional facts and circumstances to be considered in this case are as follows:

(1) the quantity of marijuana, I.e., 5 pounds,

(2) marijuana is usually sold by the pound or in 'lids' of 20 grams,

(3) the market value of $115 per pound,

(4) possession of the gram scale commonly used to reduce bulk marijuana into smaller lots for sale, and

(5) Major Scavo's testimony that Robert Harris told him he intended to 'plead guilty.'

It is the compound of all the foregoing facts, when coupled with possession, which constitutes substantial evidence and thus properly enables the jury to draw an inference of intent to deliver.

Robert Harris' assignment of error regarding the statement he made to Major Scavo is presented in 4 segments: (1) the claim that his statement constitutes an offer of settlement or compromise and is thus not admissible, (2) that the statement was not produced by the State in response to a request made pursuant to CrR 4.5, (3) that despite defendant's request, the court refused to hold a hearing pursuant to CrR 3.5 to determine the voluntariness of the statement, and (4) that the statement, if made, did not rise to the stature of an 'admission.'

Defendant's statement to Major Scavo that he intended to plead guilty was not an offer of settlement or compromise since it did not pass between the parties to any litigation, but was an utterance to a third party not privy to the proceedings in this case. In any event, unlike the rule for civil cases, offers of settlement or compromise of criminal actions are not privileged. State v. Vindhurst, 63 Wash.2d 607, 616, 388 P.2d 552 (1964); State v. Bixby, 27 Wash.2d 144, 170, 177 P.2d 689 (1947).

The prosecution is not required by CrR 4.5 ¹ and CrR 4.7 ² to anticipate all facets of the defendant's case and prepare for its rebuttal case in advance of trial, and it has no obligation to unearth statements made to Possible rebuttal witnesses and furnish them upon demand at the omnibus hearing. If, however, the State responds to matters as they develop during the trial by gathering evidence which it intends to use in rebuttal, it then has an obligation to furnish to the defendant any 'statements' which are the proper subject matter of the continuing demands of the omnibus application. In this case the trial court found the statement was not in the possession of the prosecution when the demand to produce was made and that it was provided during trial as soon as it became available. Under these circumstances the appropriate remedy would have been a request, addressed to the sound discretion of the trial court, for a continuance or at the least for a delay, so that the defendant might prepare to meet this new development. No such request was made and as will later appear, the defendant took the stand to contradict Major Scavo's testimony and has shown no prejudice resulting from any alleged violation of CrR 4.5 or CrR 4.7.

The trial court declined to embark upon a hearing pursuant to CrR 3.5 to determine admissibility of the statement to Major Scavo. The defendant now suggests that he was a member of the armed services, and because he was being interrogated by his superior officer certain military sanctions could have been involved. Accordingly, we feel impelled to discuss the application of the rule in this context. CrR 3.5 reads in part as follows:

When a statement of the accused is to be offered in evidence, the judge at the time of the omnibus hearing shall hold or set the time for a hearing, . . . for the purpose of determining whether the statement is admissible.

We find no cases discussing the...