State v. Sumbundu
| Decision Date | 16 December 2019 |
| Docket Number | No. 77782-3-I,77782-3-I |
| Court | Washington Court of Appeals |
| Parties | THE STATE OF WASHINGTON, Respondent, v. ZAKARIA SUMBUNDU, Appellant. |
UNPUBLISHED OPINION
SCHINDLER, J. — A jury convicted Zakaria Sumbundu of unlawful possession of a kilogram of cocaine with intent to deliver, count 1; conspiracy to deliver a controlled substance, count 2; and maintaining a vehicle for drug trafficking, count 3. By special verdict, the jury found Sumbundu was armed with a firearm and the convictions were a major Violation of the Uniform Controlled Substances Act, chapter 69.50 RCW. Sumbundu seeks dismissal of count 1 and count 3, claiming insufficient evidence supports the convictions of possession with intent to deliver and maintaining a vehicle for drug trafficking. Sumbundu seeks reversal of count 2, conspiracy to deliver a controlled substance, asserting the to-convict jury instruction misstates the law. Sumbundu also contends the trial court abused its discretion by denying his motion for a mistrial and prosecutorial misconduct and cumulative error deprived him of the right to a fair trial. We affirm the convictions of possession with intent to deliver and maintaining a vehicle for drug trafficking. We reverse the conviction for conspiracy to deliver a controlled substance and remand for a new trial. On remand, the court shall also correct the judgment and sentence to accurately state the maximum sentence for maintaining a vehicle for drug trafficking.
FACTS
In March 2014, United States Department of Homeland Security (DHS) Special Agent Omar Maldonado followed up on a drug trafficking "investigative lead."1 Posing as "Tony," "a cocaine source of supply," Agent Maldonado arranged to meet Bahaa Sajih Hilal at a Starbucks in Bellingham.
Hilal told Agent Maldonado he "had a friend who could purchase two to three kilograms of cocaine at a time, and would eventually want to purchase five kilograms of cocaine at a time." Hilal and Agent Maldonado discussed the "quality of cocaine," the type of "stamps imprinted on the kilograms of cocaine" that indicate the country of manufacture and symbolize the quality of the cocaine, and "the price per kilogram." They discussed "high-grade cocaine" sold at "approximately $28,500, $28,000 or so per kilogram" but did not agree on the price. Hilal told Tony that "the cocaine was going to be distributed in Washington." Because federal investigations require an international connection, Agent Maldonado turned the investigation over to the Whatcom County Gang and Drug Task Force.
Agent Maldonado contacted Hilal and said that "his cousin" would contact Hilal to supply the cocaine. United States Customs and Border Protection Agent Jorge Carrasco worked as part of the Whatcom County Gang and Drug Task Force. Posingas "Hector," Agent Carrasco called Hilal. Hilal told Hector that he was "looking to purchase" cocaine. Hilal said he wanted "a thousand dollars per kilo sold" and was "acting as a broker" for someone who was "interested in purchasing" cocaine.
On May 16, Agent Carrasco met Hilal at a Starbucks in Bellingham. Agent Carrasco showed Hilal the kilogram of cocaine in the trunk of his car. Hilal said his "buyer would probably be interested in buying it that day." Agent Carrasco told Hilal that "we couldn't do it that day, to just let his buyer know that I did have product on hand and that I could meet his demands." After the meeting, a surveillance team followed Hilal to his home in the Seattle area.
Hilal called Agent Carrasco later that same day to say that "his buyer was interested and wanted to know when we could make arrangements." Agent Carrasco "texted him a price" of $28,500. Hilal replied with "28." Agent Carrasco agreed to $28,000 for the kilogram of cocaine and arranged the exchange for May 20 at the "[p]ark and ride off of Samish and I-5"2 in Bellingham. The task force planned to arrest Hilal and the buyer after the exchange at the park and ride.
Drug Enforcement Administration Special Agent Tommy Wheeler assisted with surveillance on May 20. Agent Wheeler followed Hilal to the Prudent Autodeals Inc. car lot on Lake City Way in Seattle. Zakaria Sumbundu picked up Hilal at Prudent Autodeals in his silver Infiniti. A helicopter surveillance team video-recorded the Infiniti as it drove to the park and ride in Bellingham.
The backpack with a kilogram of cocaine was in a "separate vehicle, a minivan," at the "other end of the park and ride." Agent Carrasco was wearing "a wire" to audio record conversations and a "takedown team" was waiting nearby.
The surveillance video shows the silver Infiniti pull into the park and ride parking lot. The car pulls into a parking space and stops. Hilal gets out of the passenger side and goes to meet Agent Carrasco. Shortly thereafter, Sumbundu gets out of the Infiniti.
Hilal introduced Sumbundu to Hector. The three men stand next to Sumbundu's Infiniti for several minutes talking. Agent Carrasco asks Sumbundu if he is "the man or if he was just the man with the money." Sumbundu replied that he was "indeed the man." In the audio recording, Sumbundu discussed buying more cocaine. Sumbundu said he could purchase " 'four or five' " in a month. Sumbundu told Agent Carrasco, " " Sumbundu told Agent Carrasco he was going to "cook" the cocaine to "cut the purity so that they can make more." Agent Carrasco asked, " 'What about anything else, you interested in like crystal or black or anything?' " Sumbundu said, " 'I know people' " who do. Sumbundu said he could pay " 'cash.' "
Sumbundu told Agent Carrasco that if he calls him, " " Sumbundu told Agent Carrasco, " " Sumbundu said, " "
Agent Carrasco asked Sumbundu, " 'So why you coming up here.' " Sumbundu said, " 'I got to come and check it out.' " Agent Carrasco said, " " Sumbundu laughed and said, " 'I'm coming back in two days.' "
Agent Carrasco then asked, " 'You got the cash on you?' " Sumbundu said, " " Agent Carrasco "asked to see the money." Sumbundu walked to the driver's side of the Infiniti, "brought out a small cardboard box, and opened it." Agent Carrasco saw "bundles" of money and told Sumbundu, " "
The surveillance video shows Sumbundu walk to the trunk of his car and open it. The video shows Sumbundu and Agent Carrasco talking near the open trunk of the Infiniti. After Sumbundu opened the trunk, Agent Carrasco "saw the rest of the money." Hilal is standing behind Sumbundu and Agent Carrasco as they lean over the trunk. As Sumbundu "started pulling money out and putting it together" inside the trunk of the car, Agent Carrasco walked with Hilal to get the kilogram of cocaine.
On the way, Hilal asked Agent Carrasco, " '[C]an you get closer a little bit to Seattle?' " Agent Carrasco said, " 'It's going to be a little more expensive . . . but if he's going to be big then I'll go.' " Hilal said, " "
Agent Carrasco showed Hilal the kilogram of cocaine in the backpack. Agent Carrasco paid Hilal $1,000 and gave him the backpack. The surveillance video showsHilal walk back to the Infiniti and put the backpack with the kilogram of cocaine in the trunk of the car. The police immediately moved in to arrest Sumbundu and Hilal.
The surveillance video shows Hilal immediately lying down on the ground and officers placing him in handcuffs. Sumbundu was standing near the trunk of the Infiniti. DHS Special Agent Frank Kerr told Sumbundu, "Police, federal agents, put your hands in the air." When Sumbundu "slowly started putting his hands down towards his waist," Agent Kerr ordered him to "raise his hands and then to get on the ground." Sumbundu complied. Agent Kerr "rolled him up on his side" and found "a handgun in his front waistband" with "several rounds in the magazine."
Sumbundu waived his Miranda4 rights and agreed to talk to the police. Sumbundu told Whatcom County Sherriff's Detective Matthew High that "he got himself into something that he shouldn't have." Sumbundu said he "went with Mr. Hilal to purchase a thing." Sumbundu told Detective High that Hilal "asked him to contribute some money which he would then pay him back to purchase this thing." Sumbundu told Detective High that Hilal "asked him to lend him $9,000 to buy a thing." Sumbundu said he was going to get $2,000 in return for loaning Hilal $9,000. Detective High asked, " '[W]hat is this thing.' " Sumbundu said it was "probably weed."
Sumbundu told Detective High that when he picked up Hilal at Prudent Autodeals earlier that day, Hilal put "the money in the trunk of the car" and "gave him the gun." Sumbundu denied selling "weed or cocaine." Sumbundu told Detective High that he smoked marijuana but "he didn't say he had anything to do with cocaine."
Detective High obtained a warrant to search Sumbundu's Infiniti. Detective High found the kilogram of cocaine in the backpack in "the trunk of the" car. There was also approximately 13 grams of cocaine in "the driver's side door," 3 "small little baggies of marijuana" in the driver's side compartment, and 10 "smaller bags containing marijuana" in the center console of the Infiniti. There was "loose currency" in the trunk of the Infiniti. The majority of the money was in "a cardboard box" and $4,650 was "[j]ust around the box." The total amount of currency seized from the car plus the $603 seized from Sumbundu when he was arrested totaled $28,193.
The State charged Hilal and...
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