State v. Miller
| Decision Date | 07 February 1997 |
| Docket Number | No. 63909-4,63909-4 |
| Citation | 131 Wn.2d 78,929 P.2d 372 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Respondent, v. Jody A. MILLER, Petitioner. |
Thomas E. Doyle, Robert M. Quillian, Olympia, for Petitioner.
Gary P. Burleson, Mason County Prosecutor, Eric Valley, Deputy, Shelton, for Respondent.
Petitioner Jody A. Miller seeks review of a decision of the Court of Appeals, Division II, concluding that omission of the element of delivery to a third person from a jury instruction defining the crime of conspiracy to deliver marijuana is harmless error. We granted review. We reverse the Court of Appeals.
The question presented in this case is whether it is harmless error for the trial court to instruct the jury on the crime of conspiracy to deliver marijuana without including the element of delivery to a third person.
Petitioner Jody A. Miller is incarcerated in the Washington Corrections Center (WCC) at Shelton. His wife, Mrs. Laura A. Miller, came to the Center for a "family trailer visit" 1 with him on August 6, 1993. She brought along and secreted in an intimate body cavity two yellow balloons and a plastic bag filled with marijuana, a controlled substance. Once in the visitation trailer, she removed the objects from her body cavity and left them in the bathroom for her husband and told him where to find them. Petitioner Miller found the balloons and bag with marijuana. In order to avoid their discovery, he ate a portion of the substance, and swallowed the balloons and the plastic bag with the remainder of the marijuana. 2
After Petitioner's wife left the family visitation trailer, he was removed from the trailer to a "dry watch cell," the authorities having reason to believe Petitioner should be placed on "dry cell watch." 3 Several hours later, in the presence of two observing officers, Petitioner Miller coughed up the balloons and the plastic bag containing the marijuana.
Inspector John Geier and Detective Shane Brooks interviewed Petitioner's wife. She provided a written statement indicating it was her idea to bring the marijuana to Petitioner because she needed money, she paid $120 for the marijuana, and her husband told her he could sell it to other prisoners for $300. She was unavailable at trial. The court allowed the officers to relate the details of their interview with her. 4
Inspectors Dean Mason and John Geier then interviewed Petitioner Miller. He told them a different story. He said he asked his wife to bring the marijuana to him so he could repay a drug debt to another prisoner. Although he admitted he gave his wife instructions for acquiring the marijuana, he would not provide any additional information to the investigators. 5
On January 7, 1994, the Prosecuting Attorney filed in the Mason County Superior Court a second amended Information in three counts charging Petitioner with possession of marijuana with intent to deliver, conspiracy to deliver marijuana, and possession of a controlled substance in a correctional facility. The Information read in its entirety: 6
COUNT I
That said defendant, JODY A. MILLER, in Mason County, Washington, on or about August 6, 1993, did knowingly possess a controlled substance with the intent to deliver such substance, to-wit: possessed marijuana with the intent to deliver it to other inmates of the Washington Correctional Center.
SPECIAL ALLEGATION: (RCW 9.94A. 310(4)(b)): [sic] The offense stated in Count I was committed while the defendant was in a state correctional facility.[ 7
COUNT II
That said defendant, JODY A. MILLER, in Mason County, Washington, on or about the period between July 1, 1993 and August 6, 1993, with intent that conduct constituting the crime of delivery of marijuana be performed, agreed with another person to engage in or cause the performance of such conduct, to-wit: agreed with Laura Miller that Laura would bring marijuana into the Washington Corrections Center and the defendant would then deliver it to other inmates.
COUNT III
That said defendant, JODY A. MILLER, in Mason County, Washington, on or about August 6, 1993, while serving a sentence in a penal institution of this state, did, without authorization, knowingly possess or carry upon his person or had under his control a controlled substance, to-wit: marijuana.
Although the Information does not clearly specify it, Petitioner Miller was presumably charged under RCW 69.50.401 of the Uniform Controlled Substances Act which generally makes it "unlawful for any person to ... deliver, or possess with intent to ... deliver, a controlled substance." Marijuana is listed as a Schedule I controlled substance, 8 which subjects a person convicted under RCW 69.50.401 for its delivery or possession with intent to deliver to penalties, including imprisonment for not more than five years. 9
The criminal conspiracy statute, RCW 9A.28.040(1), provides that "[a] person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, ... [that person] agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement." That statute was not indicated or referred to in the Information.
The conspiracy section of the Uniform Controlled Substances Act, RCW 69.50.407, merely states that "[a]ny person who ... conspires to commit any offense defined in this chapter" is punishable by specified penalties. That statute was one of three listed in the heading of the Information. But the word "conspiracy" appears nowhere in the Information.
At trial, Petitioner Miller claimed the investigators fabricated their testimony about his plan and intended delivery. He claimed he was surprised by his wife's "gift" of marijuana. He admitted that upon finding the marijuana he ate some of it so he "could get high, kick back and watch the game." 10 He said he believed that if he ate the marijuana it would be less detectable than if he had smoked it. 11 He also acknowledged that he swallowed the balloons and the plastic bag to prevent their discovery. 12
The jury returned a verdict of "not guilty" on Count I, possession of marijuana with intent to deliver; a verdict of "guilty" on Count II, conspiracy to deliver marijuana; and a verdict of "guilty" on Count III, possession of a controlled substance in a correctional facility. 13 Petitioner was sentenced by the Honorable Toni A. Sheldon on February 17, 1994 to 5 years on each count to be served concurrently, but consecutive to the sentence Respondent was already serving.
Petitioner appealed his conviction for conspiracy to deliver marijuana to the Court of Appeals, Division II. He contended the jury instruction on conspiracy, Instruction 16, 14 was defective because the jury was not advised that the charge of conspiracy to deliver marijuana included the element of delivery to a third person. Petitioner argued that the error was prejudicial and the jury might have mistakenly based its guilty verdict on a determination that he conspired with his wife to deliver to himself and not to a third party.
The State relied upon State v. Guloy 15 to argue that any deficiency in Instruction 16 was insignificant harmless error because the State had indicated in its closing argument several times that Petitioner intended to make delivery of the marijuana to other prisoners.
On February 9, 1996 the Court of Appeals, in an unpublished opinion, Chief Judge Karen G. Seinfield writing, noted that the erroneous instruction in State v. Valdobinos 16 is similar to the erroneous instruction in this case. The Court of Appeals then determined the error was harmless because in the Valdobinos case closing argument left no doubt that the charge involved a conspiracy between two persons with delivery to a third, and that in this case there was no irreconcilable inconsistency between the acquittal on the possession with intent to deliver count and the conviction on the conspiracy count because the jury could have decided that Petitioner Miller's intent to deliver marijuana to other prisoners was abandoned only after he had the substance in his possession and decided to keep it for his personal use.
Petitioner Miller contends before this court that the Court of Appeals erroneously concluded it was harmless error for the trial court to omit the element of delivery to a third person from the jury instruction on conspiracy to deliver marijuana. He argues that the crime of delivery requires participation of two persons, and that "if only those two persons are alleged to have participated in the illicit agreement, the charge of conspiracy cannot lie." 17 Petitioner argues that because Instruction 16 omitted the element of delivery to a third party, it was prejudicial to him and misled the jury into concluding there was a conspiracy between Petitioner and his wife without reference to any third party.
Respondent acknowledges the error in the instruction, but contends it is harmless because all the evidence at trial made it clear the conspiracy was between Petitioner and his wife, and the anticipated delivery involved Petitioner and another prisoner. Respondent argues it was clear the agreement between Petitioner and his wife was that Petitioner would deliver the marijuana his wife brought him to another prisoner (a third person).
Petitioner contends the trial judge improperly relied upon the fact the crime occurred within a correctional facility as an aggravating factor to justify imposition of a sentence beyond the standard range. He also claims the trial court erred in considering certain substantial and compelling reasons to justify an exceptional sentence: (1) an aggravating factor for one offense (conspiracy) as an element of another offense (delivery within a correctional facility)...
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