State v. Mendoza-Solorio

• Decision Date: 25 October 2001
• Docket Number: No. 18999-6-III.,18999-6-III.
• Citation: 33 P.3d 411,108 Wash.App. 823
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Fernando MENDOZA-SOLORIO aka Fernando Solorio Madrigal, Appellant.

33 P.3d 411

108 Wash.App. 823

STATE of Washington, Respondent, v. Fernando MENDOZA-SOLORIO aka Fernando Solorio Madrigal, Appellant.

No. 18999-6-III.

Court of Appeals of Washington, Division 3, Panel Ten.

October 25, 2001.

Paul J. Wasson, Spokane, for Appellant.

Timothy S. O'Neill, Deputy Prosecuting Attorney, Goldendale, for Respondent.

BROWN, J.

Fernando Mendoza-Solorio, convicted of one count of delivery of a controlled substance and one count of conspiracy to deliver a controlled substance, appeals alleging first, the charging document failed to allege an essential element of conspiracy to deliver, and second, improper vouching by a State's witness. The State concedes to the charging error, but uniquely asks to supplement the record to cure the defect. We decline to establish a rule permitting supplementation at this stage. We decide any vouching was harmless under these facts. Accordingly, we reverse the conspiracy conviction without prejudice, and affirm the delivery conviction.

FACTS

Mr. Mendoza-Solorio was charged with count I, delivery of a controlled substance (methamphetamine) and count II, conspiracy to deliver a controlled substance (methamphetamine). Count II alleged:

That he, FERNANDO MENDOZA-SOLORIO aka FERNANDO SOLORIO MADRIGAL, in the County of Klickitat, State of Washington, on or about the period of July 1, 1999 through July 29, 1999, did conspire to deliver a Schedule II controlled substance, to-wit: methamphetamine; contrary to RCW 69.50.401(a)(1) and 69.50.407.

Clerk's Papers (CP) at 2.

Prior to confidential informant Gene Sharpe's testimony, Klickitat County Deputy Roy A. Brown partly testified:

[Prosecutor]: Was a confidential informant used in this, um, this controlled buy?

Deputy Brown: Yes it was. Actually a confidential, reliable informant.

[Prosecutor]: O-kay. Uh, and the name of the confidential informant?

Deputy Brown: The name of the confidential, reliable informant is Gene Sharpe.

Report of Proceedings (RP) at 14.

Deputy Brown testified he sent Mr. Sharpe to Bobby Atkisson's residence to obtain drugs through a controlled buy. Mr. Sharpe spoke to Mr. Atkisson but was told the drugs were then unavailable and to return later. In an hour, Mr. Sharpe returned and obtained contraband drugs. In response to a prosecution question regarding whether Mr. Sharpe had ever "held back," Deputy Brown stated: "Mr. Sharpe has been extremely honest and reliable to us. Uh, he's never lied to me as far as I know." RP at 24. Defense counsel did not object.

Mr. Sharpe testified he went to Bobby Atkisson's house for the purpose of the controlled buy operation described by Deputy Brown. When Mr. Sharpe arrived, Mr. Atkisson told him the people who had the methamphetamine were not there and to come back in about an hour. After returning to Mr. Atkisson's house, Mr. Mendoza-Solorio and his brother arrived. Mr. Atkisson introduced Mr. Sharpe to the two men and said Mr. Sharpe was there to buy methamphetamine. Mr. Mendoza-Solorio told Mr. Atkisson, "Well, you know where it is. You can get it." RP at 40. Mr. Atkisson told Mr. Mendoza-Solorio he waited because he did not want to get into his things.

Mr. Sharpe then testified he followed Mr. Mendoza-Solorio to a bedroom where Mr. Mendoza-Solorio recovered a bag of methamphetamine. Mr. Atkisson then weighed the drug on his own scale, put the amount Mr. Sharpe was purchasing in a plastic bag, and handed the bag to Mr. Mendoza-Solorio. Mr. Atkisson asked if he could have a piece of the drug. After Mr. Sharpe agreed, Mr. Atkisson broke off a piece, put the rest in a plastic bag, and handed it to Mr. Sharpe. According to Mr. Sharpe, Mr. Mendoza-Solorio was the person in charge. Mr. Mendoza-Solorio kept the undelivered drugs and accepted the buy money while Mr. Atkisson weighed the delivered drugs.

Klickitat County Detective Frank Randall described the controlled buy operation in a manner consistent with Deputy Brown. Detective Randall introduced evidence indicating the substance recovered had tested positive for methamphetamine.

After the State had rested, the trial court denied Mr. Mendoza-Solorio's motion to dismiss the conspiracy count for insufficient evidence. No objection was made at any time to the form of the information. Mr. Mendoza-Solorio rested without calling any witnesses. The jury found Mr. Mendoza-Solorio guilty on both counts. Mr. Mendoza-Solorio appealed.

During preliminary proceedings in this court, it became apparent that the parties essentially agreed the conspiracy allegations in the information lacked a required element, the identity of the alleged conspirator. Normally, this oversight would dictate reversal on that charge without prejudice to retrial under State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000). However, the State then moved to supplement the record with additional documents seeking to establish Mr. Mendoza-Solorio's knowledge of the conspirator's identity.

ISSUES

The first issue is whether under the liberal standard for reviewing a charging document omitting an essential crime element that is challenged for the first time on appeal, the State may cure the defect by showing the defendant received other information giving notice of the missing element. Next, we decide whether under these facts a State witness improperly vouched for the confidential informant's credibility, and if so, whether the error was harmless.

ANALYSIS

A. Omitted Element

When the State neglects to include an essential element of the charged crime in the charging document, and the defendant raises the issue for the first time on appeal, can the State show that the defendant received notice of the missing element by way of extrinsic information? The State, relying on its own interpretation of State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000), argues it can, and moves to supplement the record with various pleadings setting forth facts relevant to the missing element. Mr. Mendoza-Solorio disagrees.

"The Sixth Amendment to the United States Constitution and article I, section 22 (amend.10) of the Washington Constitution require that a charging document include all essential elements of a crime, statutory and nonstatutory, so as to inform the defendant of the charges against him and to allow him to prepare his defense." State v. Phillips, 98 Wash.App. 936, 939, 991 P.2d 1195 (2000) (citing State v. Hopper, 118 Wash.2d 151, 155, 822 P.2d 775 (1992); State v. Kjorsvik, 117 Wash.2d 93, 101-02, 812 P.2d 86 (1991); State v. Ralph, 85 Wash.App. 82, 84, 930 P.2d 1235 (1997)). "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." McCarty, 140 Wash.2d at 425, 998 P.2d 296 (citing 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." McCarty, 140 Wash.2d at 425, 998 P.2d 296 (citing CrR 2.1(a)(1); Kjorsvik, 117 Wash.2d at 97, 812 P.2d 86). "An information omitting essential elements charges no crime at all." State v. Sutherland, 104 Wash.App. 122, 130, 15 P.3d 1051 (2001) (citing State v. Vangerpen, 125 Wash.2d 782, 795, 888 P.2d 1177 (1995); Phillips, 98 Wash.App. at 939-41, 991 P.2d 1195; State v. Hull, 83 Wash. App. 786, 802, 924 P.2d 375 (1996)).

"[W]hen a defendant challenges the sufficiency of a charging document, the standard of review depends on the timing of the objection." State v. Grant, 104 Wash.App. 715, 720, 17 P.3d 674 (2001). If the defendant challenges the sufficiency of the charging document while the State still has the opportunity to amend the information, strict construction applies. Phillips, 98 Wash.App. at 940-43,991 P.2d 1195; see also Vangerpen, 125 Wash.2d at 788,

888 P.2d 1177 (noting State may not amend information after it has rested "unless the amendment is to a lesser degree of the same crime or a lesser included offense"). But if the defendant does not challenge the information until after the State's opportunity to amend the information has been lost, liberal construction applies. Id. This difference in standards discourages "sandbagging," the potential defense practice of remaining silent in the face of a constitutionally defective charging document because a timely challenge will merely result in the State amending the information to cure the defect. Kjorsvik, 117 Wash.2d at 103,

812 P.2d 86; Phillips, 98 Wash.App. at 940,

991 P.2d 1195; see also 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 19.2, at 442 n. 36 (1984).

Mr. Mendoza-Solorio challenges the charging document for the first time on appeal; thus, the liberal standard of review applies. Hopper, 118 Wash.2d at 155, 822 P.2d 775; Kjorsvik, 117 Wash.2d at 103, 812 P.2d 86. Under the liberal standard, the reviewing court applies a two-prong analysis: "(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 nonetheless show he or she was actually prejudiced by the inartful language." McCarty, 140 Wash.2d at 425, 998 P.2d 296 (citing 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." McCarty, 140 Wash.2d at 425-26, 998 P.2d 296 (citing Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86; City of Auburn v. Brooke, 119 Wash.2d 623, 636, 836 P.2d 212 (1992)).

Here, the State charged Mr. Mendoza-Solorio with one count of conspiracy to deliver a controlled substance. "[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." McCarty, 140 Wash.2d at 426, 998 P.2d 296 (citing State v. Valdobinos, 122 Wash.2d 270, 280, 858 P.2d 199 (1993); ...