State v. Russell
| Decision Date | 28 April 1980 |
| Docket Number | No. 6419-3-I,6419-3-I |
| Citation | 25 Wn.App. 933,611 P.2d 1320 |
| Parties | STATE of Washington, Respondent, v. Larry Lee RUSSELL, Appellant, and John Steven Burcham, Defendant. |
| Court | Washington Court of Appeals |
John Thomas Borst, Stanwood, for appellant.
Steven G. Gish, Deputy Pros. Atty., Bellingham, for respondent.
On the evening of December 20, 1977, defendant Russell, Troy Lykke and co-defendant John Burcham drove from Russell's residence to Lykke's apartment. They carried with them marijuana that was to be sold by prior arrangement to undercover police agents. The marijuana was taken from the automobile into Lykke's apartment, where later that evening undercover agents purchased a quantity of marijuana from Lykke and his wife while Russell and Burcham waited in an adjoining room. Lykke and his wife were arrested. The police then entered the adjoining room through a closed door, intending to search the room for other people. The defendants Russell and Burcham were discovered and arrested. A firearm, properly licensed to Russell, was found in Russell's pant pocket at the time of his arrest. Russell and Burcham were charged with complicity in the unlawful delivery of a controlled substance 1 while being armed with a firearm. 2
The prosecution's principal witness was Troy Lykke. Lykke was allowed to testify, over pretrial motion to exclude, that on November 23, 1977, he purchased from defendant Russell approximately $500 of marijuana. Both defendants were convicted of complicity in the unlawful delivery of a controlled substance while armed with a firearm. The trial court, however, struck the firearm clause from Burcham's verdict but left the firearm allegation intact as to defendant Russell. Russell appeals, raising seven principal issues.
Russell contends that Lykke's testimony that he purchased marijuana from defendant Russell on November 23, 1977, approximately a month before the commission of the charged offense, was inadmissible in that it pertained to activity which was independent and unrelated to the charged offense, was without relevance, was unnecessary to prove the crime charged and was prejudicial. The defendant alleges that the trial court abused its discretion by admitting evidence of "prior criminal activity" without first determining whether the prejudicial effect of such evidence was outweighed by its relevancy and necessity. State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950).
The State contends that the November 23 sale was not an independent or isolated prior crime, but was part of the crime alleged in the information. The State reasons that the November 23 sale was related sufficiently to the delivery of December 20 as to be part of the same transaction. Therefore, reasons the State, evidence of the November 23 marijuana sale was admissible under the rule that evidence of criminal conduct, other than that for which a defendant is being tried, is admissible when such conduct is an inseparable part of the whole deed. E. g., State v. Niblack, 74 Wash.2d 200, 443 P.2d 809 (1968).
The testimony supports the State's theory. The challenged testimony was interwoven with the charged offense. There was testimony that no money was exchanged between Lykke and Russell during the November 23 sale, but that Russell would be paid when Lykke resold the marijuana. There was also testimony that some of the marijuana from the November 23 sale was later given by Lykke to undercover agents as a sample of what could be sold the agents at some undetermined future date. Finally, there was testimony that some of the marijuana sold by Lykke to the undercover agents on December 20, for which defendant Russell was charged with complicity in the unlawful delivery of a controlled substance, was from the quantity which Russell delivered to Lykke on November 23. All of this connected the two incidents even though they were separated by over a month in time.
The defendant was charged with complicity in the unlawful delivery of a controlled substance. The State was entitled to explain the circumstances surrounding the December 20 delivery, from where and whom a portion of that marijuana was procured, and what was to be done with the money received from the undercover agents. The challenged testimony did not involve a completely unrelated crime, see State v. Dinges, 48 Wash.2d 152, 292 P.2d 361 (1956), but involved a unified series of events which fully described the offense charged. State v. Wills, 21 Wash.App. 677, 586 P.2d 543 (1978); State v. Battle, 16 Wash.App. 66 553 P.2d 1367 (1976); State v. Hatch, 4 Wash.App. 691, 483 P.2d 864 (1971). 3
The defendant contends that it was error for the trial court to refuse to give an instruction limiting the use of the criminal activity of November 23. We disagree. Limiting instructions are necessary to eliminate prejudicial effects of prior independent and unrelated crimes admitted into evidence and to ensure, as best as possible, that such evidence is restricted to its proper scope. E. g., State v. Goebel, supra. Here, the November 23 transaction is neither independent nor unrelated to the December 20 delivery. A limiting instruction is not required under these circumstances.
The defendant maintains that, as a matter of statutory construction, the enhanced penalty provisions of RCW 9.41.025 cannot apply to him. He asserts that since the statutory scheme of RCW 9A.08.020 imposes liability upon a person when a crime is committed by another person for which he is legally accountable, the behavior of the principal for whose conduct the accomplice is legally accountable is determinative of whether or not the firearm clause of RCW 9.41.025 can apply to the accomplice. Therefore, defendant maintains, the enhanced penalty provisions of RCW 9.41.025 cannot apply to one charged as an accomplice under RCW 9A.08.020 where the principal had no firearm in his possession nor any knowledge that the accomplice was carrying a firearm.
The defendant ignores the plain language of RCW 9.41.025 and RCW 9A.08.020. He was found to be an accomplice in the unlawful delivery of a controlled substance and was found, by special verdict, to be in the possession of a firearm when the above felony was committed. The enhanced penalty provisions of RCW 9.41.025, therefore, are directly applicable to him. His argument also ignores the following language in State v. Bennett, 20 Wash.App. 783, 582 P.2d 569 (1978), at page 788, 582 P.2d at page 572:
Under RCW 9A.08.020, every person involved in the commission of a felony, whether he directly commits the offense or aids and abets in its commission, is regarded and punished as a principal.
See also State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (1974); State v. Baylor, 17 Wash.App. 616, 565 P.2d 99 (1977). While a principal may not be subject to the penalty enhancement provisions where he is unarmed and without knowledge that his accomplice is armed, this does not mean that the provision is inapplicable to the armed accomplice. See Key v. State, 563 S.W.2d 184 (Tenn.1978).
PROVISIONS OF RCW 9.41.025
WHERE THE FIREARM IS LEGALLY LICENSED
The firearm found on defendant Russell's person was legally licensed to him pursuant to RCW 9.41.050 and .070. The firearm, located in Russell's pant pocket, was neither used nor wielded in any way when the officers entered the room. He argues that logic and reason compel the court to find an implied exception to the enhancement penalty provisions of RCW 9.41.025 where the firearm is legally licensed to the carrier. We disagree. The statute is intended to penalize persons who are in possession of a firearm while committing certain crimes and to discourage the violence that may result from the commission of criminal actions while armed. The status of the firearm, whether loaded or unloaded, State v. Hattori, 19 Wash.App. 74, 83, 573 P.2d 829 (1978), or wrestled away from the victim, State v. Bradley, 20 Wash.App. 340, 581 P.2d 1053 (1978), or licensed or unlicensed, is immaterial. A license to carry a concealed weapon is not a license to carry a concealed weapon while committing a crime. State v. Hattori, supra, 19 Wash.App. at page 82, 573 P.2d at pages 833-834 said:
The apprehension in the mind of the victim of a crime committed by a defendant armed with a gun is the same whether the gun is loaded or unloaded. . . . In addition, an unloaded gun can easily be loaded during the commission of the crime, and, thus, a defendant armed with an unloaded gun has the same potential for inflicting violence as a defendant armed with a loaded gun.
(Citations omitted.) The same can be said about a licensed firearm in the possession of a person committing a crime.
AND WAIT" RULE OF RCW 10.31.040
WHICH REQUIRES SUPPRESSION OF
The record reveals that three undercover police officers were invited into the Lykke apartment by Lykke for the express purpose of consummating a previously arranged marijuana sale. The pre-sale negotiation and the eventual sale took place in the kitchen of Lykke's apartment and involved only the three officers, Lykke and Lykke's wife. After money for the sale exchanged hands, Lykke and his wife were arrested. There was testimony that the Lykkes were told to be quiet and to move into a corner of the kitchen in case any violence should occur. One officer remained with the...
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