State v. Markwart

• Decision Date: 03 July 2014
• Docket Number: No. 31158–9–III.,31158–9–III.
• Citation: 329 P.3d 108,182 Wash.App. 335
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Tyler John MARKWART, Appellant.

182 Wash.App. 335

329 P.3d 108

STATE of Washington, Respondent,

v.Tyler John MARKWART, Appellant.

No. 31158–9–III.

Court of Appeals of Washington,

Division 3.

July 3, 2014.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Appellant.

Denis Paul Tracy, Bill Joseph Druffel, Whitman Co Prosecutor, Colfax, WA, for Respondent.

FEARING, J.

¶ 1 Tyler Markwart appeals his convictions for manufacturing marijuana, possession with intent to sell marijuana, and three counts of delivering marijuana. He asks this court to dismiss the charges on the ground of police misconduct. In the alternative, he seeks a new trial on the grounds that the trial court refused to instruct the jury on his defenses of entrapment and under the former Washington State Medical Use of Marijuana Act (MUMA), chapter 69.51A RCW (1999). Because law enforcement officers engaged in a permissible ruse, we reject Markwart's request to dismiss for police misconduct. We reverse the convictions of manufacturing and possession with intent to sell, because, under our recent decision, State v. Shupe, 172 Wash.App. 341, 289 P.3d 741 (2012), review denied177 Wash.2d 1010, 302 P.3d 180 (2013), decided after trial, the jury should have considered Markwart's medicinal marijuana defense. We affirm the convictions for delivery of marijuana.

FACTS

¶ 2 Tyler Markwart's claim of police misconduct arises from his contact with members of the Pullman Police Department and the Quad Cities Drug Task Force. This interaction began, in August 2009, when an electrician reported to Pullman police that he saw marijuana, paraphernalia, and possible supplies to grow marijuana in an apartment, located at 1920 NE Terre View Dr., # J209, where he performed work. The address is part of Campus Common North at Washington State University. Police applied for and executed a search warrant for the apartment. Tyler Markwart and Michael Pecharko rented the apartment, but only Pecharko was home when police executed the search warrant. Police located marijuana plants and a handgun inside the apartment. Pecharko claimed ownership to the handgun and produced forms authorizing him to possess marijuana as a qualifying patient under MUMA. Police tentatively decided not to file criminal charges so long as Tyler Markwart, when he returned, produced an authorization form for medicinal marijuana. The next day Markwart produced his authorization form.

¶ 3 In February 2011, police interviewed Tyler Markwart at his home as part of a robbery investigation. Officer Aaron Breshears of the Pullman Police Department investigated the burglary and received Markwart'sconsent to search his residence, where the officer observed a marijuana grow operation. During the burglary investigation, Markwart disclosed to police that he operated Allele Seeds Research, a dispensary for medical marijuana patients. As proof, he produced medical marijuana forms. Upon reviewing Markwart's paperwork, Officer Breshears determined Markwart's grow operation was in compliance with the law, but he suggested Markwart tell other growers to register their operations with the police department to avoid “pesky search warrants.” Clerk's Papers (CP) at 315.

¶ 4 Officer Aaron Breshears notified all Pullman police via e-mail that marijuana growers may come to the police department to register their respective operations and disclosed that, during the search of Tyler Markwart's home, officers found firearms and a marijuana grow operation. Based on this e-mail, Detective Scott Patrick of the Quad Cities Drug Task Force began an investigation into Markwart and Allele Seeds Research. In describing why he initiated the investigation, Detective Patrick explained:

People who are involved in narcotic trafficking become targets for people because if you rob somebody who's involved in narcotic trafficking, oftentimes they don't report to the police. I know of at least three instances in the City of Pullman in the last year in which we've had people who have been robbed at either gunpoint or knifepoint, specifically one in particular who was allegedly selling marijuana.

So, the firearm issue was a little bit—what I was concerned about because of the proximity. Campus Commons North is about a 300–unit apartment complex in the city. It's a courtyard situation, there's multiple apartments in the area, and my concern was a run-and-gun battle through the middle of that if someone was to break into his [Markwart's] apartment.

Report of Proceedings (RP) at 128.

¶ 5 Tyler Markwart is an outspoken advocate for medical marijuana. During his investigation, Detective Scott Patrick located statements Markwart made to the Washington State University (WSU) Daily Evergreen and Moscow–Pullman Daily News that led him to believe Markwart violated MUMA. Specifically, Markwart disclosed to the press that he provided marijuana to more than one qualifying patient. MUMA permits a person to be a “designated provider to only one patient at any one time.” Former RCW 69.51A.010(1)(d) (Laws of 2007, ch. 371, § 5).

¶ 6 Based on Tyler Markwart's public statements, Detective Patrick decided to seek a “controlled buy” from Markwart. At a Whitman County deputy prosecutor's request, Patrick postponed the purchase until the Whitman County prosecuting attorney and he could meet with Markwart. The prosecutor's office wished to inquire from Markwart about his operations and determine if he complied with MUMA.

¶ 7 The Whitman County prosecutor and his deputy met with Tyler Markwart and informed Markwart that he was in violation of MUMA if he provided marijuana to more than one person at a time. Markwart assured them he did not. He claimed to provide marijuana to one qualified patient at a time for a limited period of time. Perhaps unsatisfied with Markwart's answer, the county prosecutor directed Detective Patrick to continue his investigation.

¶ 8 Detective Scott Patrick conducted three controlled buys from Tyler Markwart. A WSU student whom police previously arrested for marijuana distribution became a confidential informant and conducted the first controlled buy in exchange for a reduced sentence. The police gave the informant the website address for Allele Seeds Research and directed the informant to contact Markwart. Markwart instructed potential purchasers, via his website, that they must present valid authorization as a qualified patient under MUMA and Washington State identification. The website also listed an e-mail address belonging to Markwart.

¶ 9 The confidential informant sent a message to Tyler Markwart using the e-mail address found on the Allele Seeds website. The informant stated that he recently obtained authorization for medical marijuana and wanted to purchase marijuana. In his response, Markwart sent the informant his phone number and again warned him that he must present a valid medical marijuana authorization form and identification card. When the confidential informant called Markwart to arrange a meeting to purchase marijuana, the two agreed to meet at the restaurant Cougar Country. Markwart again repeated his warning that he would need to see paperwork and identification to make a delivery.

¶ 10 Before the transactional meeting between the confidential informant and Tyler Markwart, Detective Scott Patrick completed an ersatz medical marijuana authorization form for the confidential informant and curiously directed another detective, with better handwriting, to sign the form using the name of a fictionalized doctor. The physician's authorization was written on non-tamper resistant paper, despite RCW 69.51A.010(7)(a) requiring authorizations on tamper resistant paper.

¶ 11 On March 10, 2011, the confidential informant joined Tyler Markwart at a table at Cougar Country restaurant. Markwart asked to see his authorization for medical marijuana. The informant presented the authorization police created, showed Markwart his identification card, and signed a form designating Markwart as his provider of medical marijuana. Markwart told the informant that he would not need to see the written forms in the future. Markwart and the informant left Cougar Country for Markwart's truck where the informant purchased $200 worth of marijuana.

¶ 12 On March 24, 2011, the police informant contacted Tyler Markwart to purchase marijuana again. The two met at Jimmy John's, a sandwich shop. Markwart did not ask to see the informant's authorization or identification. Outside the restaurant, Markwart again sold the informant $200 worth of marijuana.

¶ 13 On April 5, Detective Scott Patrick created a fake e-mail account for Police Detective Bryson Aase, who sent an e-mail to Allele Seeds Research claiming to be a “patient living in the Pullman area looking to purchase medicine.” CP at 140. In the e-mail, Aase also claimed to have his “paperwork.” CP at 141. Markwart responded, asking Aase to contact him by cell phone. Detective Patrick completed a medical authorization form for Bryson Aase and signed the form in the name of a fictitious doctor. Detective Patrick did not print the medical authorization on tamper resistant paper.

¶ 14 The confidential informant purchased marijuana from Tyler Markwart a third time outside a Starbucks on April 15. Markwart exited Starbucks as the informant arrived. The police informant waived Markwart towards his or her vehicle and asked to purchase $200 worth of marijuana. Markwart only brought $140 worth of marijuana to sell. Markwart informed the informant that the informant could purchase more at a party that evening and advised the informant he could “smell him at the party.” RP at 60.

¶ 15 On April 19, police conducted a fourth controlled buy, this time with Detective Aase. Bryson Aase called Markwart to schedule a meeting where he could purchase marijuana. Markwart told Aase he would need a medicinal marijuana authorization form and a government issued photo identification. The two agreed to meet in a parking lot. Before the meeting,...