State v. King, No. 29120-7-II Consolidated with (WA 9/28/2004)
| Decision Date | 28 September 2004 |
| Docket Number | No. 29235-1-II,No. 29132-1-II,No. 29120-7-II Consolidated with,29120-7-II Consolidated with,29235-1-II,29132-1-II |
| Court | United States State Supreme Court of Washington |
| Parties | STATE OF WASHINGTON, Respondent, v. JOHN WILLIAM KING, Appellant. STATE OF WASHINGTON, Respondent, v. JOANNA BETTY KELSO, Appellant. STATE OF WASHINGTON, Respondent, v. DAVID MELTON BERTRAND, SR., Appellant. |
Appeal from Superior Court of Pierce County. Docket No: 02-1-00972-9. Judgment or order under review. Date filed: 06/21/2002. Judge signing: Hon. Kathryn J Nelson.
Counsel for Appellant(s), Suzanne Lee Elliott, Attorney at Law, Ste 1300 Hoge Bldg, 705 2nd Ave, Seattle, WA 98104-1741.
Alton B II McFadden, Olsen & Olsen, 216 Ericksen Ave NE, Bainbridge Island, WA 98110-2820.
Pattie Mhoon, Attorney at Law, 949 Market St Ste 488, Tacoma, WA 98402-3600.
Counsel for Respondent(s), John Michael Sheeran, Attorney at Law, Pierce Cty Prosecutor S, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2102.
David Bertrand, Joanna Kelso, and John King appeal various drug convictions. One or more of them argues illegal search; failure to comply with Miranda;1 exclusion of evidence of diminished capacity; variance between charge and jury instructions; denial of severance and mistrial; insufficient evidence; and `same criminal conduct.' We affirm.
In 2001 and 2002, Pierce County's Department of Planning and Land Services employed Mark Luppino as a code enforcement officer. He had authority to investigate zoning complaints and remedy violations by issuing citations, levying fines, and recommending criminal charges. When he received a complaint, he generally contacted the property owner in person, provided information on the applicable regulations, and, if necessary, asked for compliance.
In February 2002, Luppino received `a whole bunch of complaints' about three consolidated parcels of property located at 10802, 10808, and 10812 Park Avenue South (hereafter `the property').2 He learned that the property was occupied by Fred Leffler, a person whom he had contacted earlier about zoning problems at a different location. He requested that sheriff's deputies escort him to the property, even though he had not heard of drug activity there, because he was `concerned that if I run into Mr. Leffler he would be rather upset with me that I am investigating his activities again.'3
On February 26, 2002, Luppino, another zoning officer, a health inspector, and six uniformed sheriff's deputies (Papen, Fries, Hunsinger, Butler, Halsey, and Estes) went to the property. They did not see a fence or `no trespassing signs,' although they did see signs saying, `Fred Leffler, 24-7 Auto' and a sign saying `Entrance.'4 Inside the property, they observed many junk vehicles, several trailers and tents, and two mobile homes located about 15 feet apart.
As Papen and Luppino walked toward the southern part of the property, they encountered David Bertrand. Papen noted that Bertrand's hands and forearms looked as if they had been severely burned. After introducing himself, Papen asked who Bertrand was, where he lived, and how he had burned his hands. Bertrand gave his name, said he lived in a trailer on the property, and explained that he had burned himself while cooking. When Papen asked if anyone else was in the trailer, Bertrand said that King and Kelso were.
As Papen approached the trailer's door, King came out through that door. He had in his right hand a `three to five inch {razor} blade . . . coated with a white powder' that he attempted to discard as soon as he saw Papen.5 Looking into the trailer through its still-open door, Papen saw a red funnel, a hot plate, a kitchen plate with white powder on it, a gram scale, and coffee filters. He recognized `these items as being related to meth labs,'6 and he smelled a `chemical or solvent odor' that he associated with the manufacture of methamphetamine.7
King waited with another deputy as Papen yelled twice for Kelso to come out of the trailer. Receiving no response, he and Deputy Fries entered the trailer and found Kelso asleep in a bedroom. She was `surrounded by numerous meth lab related items,'8 including `a coffee grinder . . . lined . . . with a white powder substance {and} coffee filters'; `a bundle of clear plastic bags'; a mirror with a `small pile of white powder substance' on it; `a propane tank and a five-gallon blue chemical container'; a jug of muriatic acid; and `several blister packets of Contact Flu Cold medication' containing pseudoephedrine.9 Also present were `{a} five-gallon propane tank with a modified valve {and} blue corrosion on the valve';10 several jars containing coffee filters and liquids and/ or `white sludge'11 that later tested positive for methamphetamine; and a bag of `tan and white powder' containing 17.4 grams of `essentially pure pseudoephedrine.'12 Also found were jugs of acetone, starter fluid, Coleman fuel, paint thinner, a gram scale with white residue on it, and identification and documents in Kelso's name. Papen and Fries removed Kelso from the trailer, and a narcotics deputy obtained a search warrant.
On February 27, 2002, the State filed an information that as later amended charged each defendant with manufacturing methamphetamine (Count I), possession of anhydrous ammonia with intent to manufacture methamphetamine (Count II), and simple possession of methamphetamine (Count III). In Count I, the State alleged that each defendant had `knowingly manufacture{d} a controlled substance.'13
Before trial, all three defendants filed motions to suppress the evidence seized from the trailer. After a hearing, the trial court found that Luppino had asked for the deputies to accompany him because his previous contacts with Leffler had caused him concern for his own safety. Neither he nor any other governmental agent knew of drug activity on the property before going there. The deputies entered areas `that were impliedly open to the public,'14 and their entry was neither a `search' nor `a pretext for searching for drug-related activity or a meth lab.'15 The deputies had not seized Bertrand during their initial conversation with him, Papen had lawfully looked through the trailer's door, and Papen and Fries had lawfully entered the trailer to aid Kelso. The trial court denied the motions to suppress.
Bertrand also filed a motion to suppress the statements he had made to the deputies. After a hearing, the trial court denied that motion.
On April 29, 2002, Kelso filed a notice of intent to claim diminished capacity. On May 29, the trial court granted the State's motion to exclude evidence relevant to that subject.
Jury selection began on May 28, 2002, and the trial continued intermittently through June 17, 2002. On June 10, 2002, as trial was ongoing, the trial court revised the order by which it had precluded Kelso from proving or arguing diminished capacity. The court now ruled that Kelso could prove and argue diminished capacity on Count II, but not on Count I or Count III. Dr. David Moore subsequently testified that Kelso's mental problems diminished her capacity to form the intent to manufacture methamphetamine, one of the elements of Count II.
After the trial court revised its order on diminished capacity, Bertrand moved for severance and a mistrial. He claimed that the new ruling deprived him of a reasonable opportunity to prepare for trial. The trial court denied his motion.
Kelso testified in her own defense. Describing Bertrand as her `last and final boyfriend,' she characterized the bedroom in which she had been found as `our room because sometimes I keep my things there . . . I basically didn't have a place of living.'16 Later, she also characterized the bedroom as `my room.'17
Although Count I had alleged that each defendant `knowingly manufacture{d} a controlled substance,'18 the trial court instructed that the jury could convict each defendant by finding beyond a reasonable doubt that he or she had `manufactured a controlled substance' and `knew that the substance manufactured was a controlled substance.'19 The trial court also instructed that the jury could consider evidence of intoxication or mental illness when deciding Count II, but not, by implication, when deciding Count I or Count III.
On June 17, 2002, the jury convicted Bertrand and Kelso as charged. The jury convicted King of Count III, possessing methamphetamine, but it acquitted him on Counts I and II.
On June 19, 2002, the trial court held a sentencing hearing at which Kelso and Bertrand argued that their convictions arose from the same criminal conduct. The trial court disagreed, stating that it saw `the intents as objectively different.'20 Kelso and Bertrand received DOSA sentences that included periods of total confinement equal to one half the midpoint of the standard range. King received a standard range sentence.
All three defendants now appeal. Each contends that governmental agents illegally searched the property and the trailer. Bertrand contends that the same agents illegally obtained statements from him. Kelso contends that the trial court erred by excluding evidence of diminished capacity on Counts I and III, and by instructing on Count I in a way that varied from the language of the information. Bertrand contends that his motions for severance and mistrial were erroneously denied. Kelso contends that the evidence is insufficient to support her convictions and that her convictions involved the `same criminal conduct' for purposes of sentencing.
The defendants claim that the officers searched in violation of the Fourth Amendment and Washington Constitution Article I, section 7. We analyze (A) whether the officers entered the property illegally; (B) whether the officers seized Bertrand illegally; (C) whether Papen acted illegally when he looked through the trailer's door while standing outside the trailer; and (D) whether Papen and Fries entered the trailer illegally. If the answer to each...
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