State v. Putnam
| Citation | 31 Wn.App. 156,639 P.2d 858 |
| Decision Date | 20 January 1982 |
| Docket Number | No. 8728-2-I,8728-2-I |
| Parties | STATE of Washington, Respondent, v. Patrick M. PUTNAM, Appellant. STATE of Washington, Respondent, v. Calvin M. HIATT, Appellant. |
| Court | Washington Court of Appeals |
Kempton, Savage & Gossard, Anthony Savage, Seattle, for Hiatt.
Hon. Norman K. Maleng, King County Pros. Atty., H. Duane Evans, Seattle, for respondent.
Defendants Patrick Putnam and Calvin Hiatt appeal the judgments and sentences entered upon their convictions by a jury of the crimes of promoting prostitution in the second degree and criminal conspiracy. We reverse the criminal conspiracy convictions and affirm the convictions for promoting prostitution in the second degree.
As the result of a King County Police investigation of two businesses suspected of being fronts for prostitution, the Kinky Korner (Korner) and the American Sexual Society (Society), Putnam and Hiatt were arrested and charged by second amended information with the crimes of promoting prostitution in the second degree and criminal conspiracy. 1
The investigation began in early 1979 but was impeded by the elaborate customer screening procedures at the Korner. The police found it necessary to employ unorthodox investigatory methods, planting an undercover civilian agent, Shirley Adkisson, as an employee at the Korner and later at the Society. Adkisson was told by the police to "do what was necessary" to gather evidence of prostitution. She was specifically authorized to "turn tricks", and engaged in 20 to 25 acts of prostitution over a 3-week period. She also supervised other women at the Society and took part in recruitment activities with the knowledge of the police, who had told her to "go ahead."
At the pretrial hearing the defendants moved for dismissal or suppression of Adkisson's testimony at trial because of the police investigatory methods. The court denied the motions. The trials of the four defendants were severed. Hiatt and Putnam were tried together before a jury and found guilty on all counts. Each received a prison sentence of 5 years for promoting prostitution in the second degree and 1 year for criminal conspiracy, to be served concurrently. Thirteen assignments of error are made which present three issues for our consideration.
Defendants contend that it was improper to charge and convict under both RCW 9A.28.040, 2 the general conspiracy statute, and RCW 9A.88.080, 3 promoting prostitution in In Cann the defendant invited two police agents posing as prostitutes to join his prostitution enterprise. He was convicted under RCW 9A.88.080 of promoting prostitution in the second degree, and argued on appeal that the statutory scheme was unconstitutional since it gave the prosecutor the option of charging either a misdemeanor (criminal solicitation, RCW 9A.28.030) or a felony (promoting prostitution in the second degree, RCW 9A.88.080) for the same conduct. The court held that RCW 9A.88.080 was a special statute intended to punish conduct relating to prostitution activity, including solicitation for such purposes. Cann at 197, 595 P.2d 912. Applying the rule of statutory construction that where general and special laws are concurrent, the special law applies to the exclusion of the general, the court held that Cann could not have been charged under RCW 9A.28.030 for solicitation of prostitutes, and affirmed the conviction. Id.
the second degree. They argue that the words "or engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution," used in defining the crime under RCW 9A.88.060, encompass any and all conspiratorial acts committed. They contend that the existence of the specific prostitution statute excludes application of the general conspiracy statute, and view State v. Cann, 92 Wash.2d 193, 595 P.2d 912 (1979), as controlling. The State responds that Cann is based on specific statutory language dealing with soliciting, and is inapplicable to the offense of conspiracy.
We disagree with the State's contention that the Cann court did not rely on the "any other conduct" clause of We hold that Cann likewise precludes the charging of a general conspiracy to promote prostitution under RCW 9A.28.040. Any agreement to engage in or cause the performance of prostitution activity constitutes "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution." Under the rule of Cann, the specific statute excludes the general and "the prosecutor ... is not at liberty to charge under the general statute a person whose conduct brings his offense within the special statute." Cann 92 Wash.2d at 197, 595 P.2d 912. The conspiracy convictions must be reversed.
9A.88.060, but on the express statutory language dealing with "soliciting." That clause reads "solicits customers for prostitution." RCW 9A.88.060(1). Cann did not solicit customers, he solicited prostitutes. The court held that application of the general solicitation statute to prostitution was precluded by the language of RCW 9A.88.060, proscribing "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution."
Putnam and Hiatt argue that the police conduct was so outrageous as to constitute either entrapment as a matter of law or a violation of due process.
The entrapment defense has been codified in Washington. 4 The statute articulates the "subjective" theory of entrapment, requiring proof of mental state; if a defendant was otherwise disposed to commit the crime, the defense is not available. State v. Swain, 10 Wash.App. 885, 520 P.2d 950 (1974). Neither appellant has urged that the police misconduct in this investigation induced them to commit the crimes charged; thus no entrapment defense is available.
Putnam and Hiatt claim, however, that Adkisson's acts of prostitution and the police approval and encouragement thereof were so shocking to the universal sense of justice as to violate the due process standard of fundamental fairness, requiring dismissal under United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) and State v. Emerson, 10 Wash.App. 235, 517 P.2d 245 (1973).
In general, illegal conduct by the police or police agents is not sufficient by itself to justify dismissal on due process grounds. Police investigatory misconduct, however, may reach such a level of outrageousness that dismissal of the resulting criminal charges is required. The United States Supreme Court recognized the existence of such a defense in Russell 411 U.S. at 431-32, 93 S.Ct. at 1643:
we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, (but) (t)he law enforcement conduct here stops far short of violating that "fundamental fairness, shocking to the universal sense of justice," mandated by the Due Process Clause of the Fifth Amendment.
(Citation omitted.)
In Emerson, this court rejected a defense based on public policy considerations and examined the due process standard set out in Russell. It characterized the Russell standard as being "at least implicitly the product of a reconciliation of competing public policies," Emerson, 10 Wash.App. at 241-42, 517 P.2d 245, and set out the proper methodology for application of the standard:
Concepts of public policy and due process utilized by the proponents of each of the views described call for the balancing of the public policies involved and a choice of a public policy to be enforced. Public policy requires that crime be detected and its perpetrators punished. Public policy also requires that a defendant be fairly treated. Practical considerations require that, in the performance by police of crime detection duties, at least some deceitful practices and "a limited participation" in unlawful practices be tolerated and recognized as lawful.
The trial court in the present case applied this approach in making its determination that the police methods were not so outrageous as to require dismissal or suppression. The conscientious and careful trial judge balanced the defendants' misconduct with that of the police and ruled that the societal interests involved justified the police investigatory methods. 5 Although he specifically stated for the record that his decision was based on personal standards "because I cannot speak for society at large," his reasoning demonstrates that due regard was given to the standard set by Russell and Emerson. It was not error to deny the motion to dismiss.
Putnam contends that the trial court erred in failing to give his proffered instruction on permitting prostitution 6 as a lesser included offense of promoting prostitution in the second degree.
A lesser included offense instruction is proper only where each element of the "lesser" offense is a necessary element of the "greater" offense, and the evidence supports an inference that only the "lesser" offense was committed. State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978), State v. Bower, 28 Wash.App. 704, 626 P.2d 39 (1981). The first prong of this test must be strictly applied to ensure that a defendant is not convicted of a crime with which he has not been charged. Const. art. 1, § 22; see State v. Miller, 30 Wash.App. 443, 635 P.2d 160 (1981). An equivalent form of this test is that if it is possible to commit the greater offense without having committed the lesser offense, the latter is not an included crime. State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973).
The offense of permitting prostitution requires that the perpetrator have "possession or control of...
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