State v. McCarty
| Decision Date | 27 April 2000 |
| Docket Number | No. 67902-9.,67902-9. |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent, v. Jason J. McCARTY, Petitioner. |
Thomas E. Doyle, Hansville, Patricia A. Pethick, Tacoma, Robert M. Quillian, Olympia, for Petitioner.
Ed Holm, Thurston County Prosecutor, John M. Jones, Deputy Thurston County Prosecutor, Olympia, for Respondent.
We here review an unpublished decision of the Court of Appeals, Division Two, which affirmed Jason McCarty's Thurston County conviction for conspiracy to deliver a controlled substance. State v. McCarty, Nos. 210959-II, 22303-1-II, 94 Wash.App. 1026, 1999 WL 124444 (Wash.Ct.App. Mar. 5, 1999). McCarty claims the information charging him with the conspiracy was fatally defective for want of an essential element. We agree and reverse.
This case arises from a plan to sell a mythical one half pound of methamphetamine in mid-June 1995 for $2,500. In addition to the Thurston County Sheriff's Office and Thurston County Narcotics Task Force, the arrangement involved an ensemble cast including Jason McCarty, an Olympia attorney; Don Jordan, a police informant; Ivan Yoder, an incarcerated felon; Jerome Moore, an intermediary; and Rebecca "Becky" Andrade, a bit player.
At least as early as spring 1995, police and prosecutors in Thurston County began to suspect McCarty of dealing drugs with and through his longtime client, Ivan Yoder. Detective Donald Heinz of the Thurston County Sheriff's Office began investigating McCarty based on information given to him by Don Jordan, his informant. Jordan told Detective Heinz he thought McCarty would accept drugs or drug money as part of a retainer for legal services. After speaking with Detective Heinz, Jordan called McCarty and arranged to meet with him in his Olympia office to discuss hiring McCarty as his attorney. Jordan later reported to Detective Heinz that he was meeting with McCarty and believed McCarty would agree to accept drugs or drug money as a retainer.
Jordan met with McCarty in McCarty's office on June 13, 1995, apparently to discuss hiring him to appear in a hearing to recover possession of a house belonging to Jordan's mother, which had been seized in a drug raid. Jordan testified at trial that he told McCarty:
I was short of cash but that I had a couple hundred dollars on me and I had a half pound of methamphetamine that I needed to get rid of, that I had come up here to see a fellow named Ivan Yoder but Yoder was now in jail and I had no way to get rid of it.
Verbatim Report of Proceedings (RP) (Mar. 12, 1996) at 124. Jordan further asked McCarty if he would contact Yoder and tell him Jordan needed to see him "so I could dump this off and get the retainer money." Id. Yoder was incarcerated in the Thurston County jail awaiting trial on several pending felony charges.
McCarty told Jordan he would discount his usual fee of $5,000 for such a matter to $2,500 because Jordan was a friend of Yoder's. Jordan advised McCarty that the $2,500 would come from the sale of the drugs. Jordan related this conversation to Detective Heinz and then set out to meet Yoder at the county jail.
When Jordan arrived at the jail that evening, Yoder advised him that he had already met with McCarty and was aware of Jordan's methamphetamine. Also present during this meeting was Rebecca "Becky" Andrade, whose ultimate role in the conspiracy the record leaves opaque.
At first Yoder instructed Jordan to use Becky as an intermediary to sell the drugs. During a telephone conversation the following morning, however, Yoder advised Jordan not to use Becky to consummate the sale, but rather to expect contact from Jerome Moore, another of Yoder's associates, who would pay Jordan for the drugs. Jordan reminded Yoder that he needed the $2,500 to pay McCarty, and Yoder replied that he would speak with McCarty and assure him the money would be coming.
Moore contacted Jordan moments after this telephone conversation ended, and arranged for the methamphetamine sale. Moore told Jordan he was in contact with Yoder and could take possession of the drugs for Yoder. As Moore was on electronic home monitoring, he requested Jordan come to his house to complete the transaction.
Several telephone calls ensued between McCarty, Moore, and Jordan. McCarty called Moore and asked whether he had contacted Jordan. An envelope with Moore's telephone number written on it was subsequently found by police in McCarty's home. McCarty also called Jordan and indicated Yoder "cosigned" for Moore, indicating to Jordan that he was a "good guy," and "part of the circle." RP at 140.
Jordan made arrangements with McCarty to meet at 9:40 p.m. that day at the Tumwater Inn after learning the deal between Jordan and Moore "was going down." RP at 143. The two met that evening and Jordan gave McCarty $2,500, telling him that's a "heck of a price" for a half pound of methamphetamine. RP at 143. McCarty asked "if the buyer was happy." Id. After the meeting, members of the Thurston County Narcotics Task Force moved in and arrested McCarty in his car. The $2,500 was provided by the police, who had also equipped Jordan with a wire to record his conversation with McCarty. A tape of the conversation was played to the jury.
McCarty was charged on September 8, 1995, with two counts of money laundering and conspiracy to deliver a controlled substance. The money laundering counts were severed from the conspiracy count and a separate trial, not at issue in this appeal, was held on those charges. McCarty was tried on the conspiracy charge on March 11, 1998, and the jury convicted him on March 18, 1998.
The information charging McCarty with conspiracy read in full:
Clerk's Papers (CP) at 3. McCarty did not challenge the information at trial, but challenged its sufficiency for the first time on appeal.
The sole issue before the court is whether the information charging McCarty with conspiracy to deliver methamphetamine is fatally defective because it omits a necessary element of the crime, viz., an allegation of the involvement of a person outside the agreement to deliver drugs.
McCarty contends that the information unconstitutionally failed to allege a necessary common law element: that he agreed with persons involved outside the act of delivery to engage in or cause the performance of a crime. State v. Valdobinos, 122 Wash.2d 270, 280, 858 P.2d 199 (1993). U.S. Const. amend. 6 requires that "[i]n all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation...." Const. art. I, § 22 (amend.10) further states that "[i]n criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him...." Therefore an accused has a protected right, under our state and federal charters, to be informed of the criminal charge against him so he will be able to prepare and mount a defense at trial. State v. Bergeron, 105 Wash.2d 1, 18, 711 P.2d 1000 (1985). Every material element of the charge, along with all essential supporting facts, must be put forth with clarity. CrR 2.1(a)(1); State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991).
It is a well-settled rule that a charging document satisfies these constitutional principles only if it states all the essential elements of the crime charged, both statutory and nonstatutory. Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86; State v. Vangerpen, 125 Wash.2d 782, 787, 888 P.2d 1177 (1995). If a charging document is challenged for the first time on review, however, it will be construed liberally and will be found sufficient if the necessary elements appear in any form, or by fair construction may be found, on the face of the document. Kjorsvik, 117 Wash.2d at 105, 812 P.2d 86. However we note that "`[i]f the document cannot be construed to give notice of or to contain in some manner the essential elements of a crime, the most liberal reading cannot cure it.'" State v. Moavenzadeh, 135 Wash.2d 359, 363, 956 P.2d 1097 (1998) (quoting State v. Campbell, 125 Wash.2d 797, 802, 888 P.2d 1185 (1995)).
Thus reading the information liberally, we employ the Kjorsvik two-prong test: (1) do the necessary elements appear in any form, or by fair construction can they be found, in the information, and if so (2) can the defendant show he or she was actually prejudiced by the inartful language. Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86. If the necessary elements are not found or fairly implied, however, we presume prejudice and reverse without reaching the question of prejudice. Id. See also City of Auburn v. Brooke, 119 Wash.2d 623, 636, 836 P.2d 212 (1992)
().
McCarty argues the information is deficient because on its face it fails to allege the involvement of more than two people. We agree. Conspiracy to deliver a controlled substance, unlike conspiracy in general, necessarily requires the involvement of at least three people because the crime of delivery itself necessarily involves two people. Thus a document charging conspiracy to deliver a controlled substance must allege that persons involved outside the act of delivery took part in the conspiracy agreement.1Valdobinos, 122 Wash.2d at 280,858 P.2d 199; State v. Miller, 131 Wash.2d 78, 91, 929 P.2d 372 (1997).
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