State v. Wallway
| Decision Date | 07 January 1994 |
| Docket Number | Nos. 14042-0-I,14336-4-II,s. 14042-0-I |
| Citation | 72 Wn.App. 407,865 P.2d 531 |
| Court | Washington Court of Appeals |
| Parties | The STATE of Washington, Respondent, v. Donald Ray WALLWAY, Appellant. The STATE of Washington, Respondent, v. Daniel HOINOWSKI, Appellant. |
Mark A. Panitch, Seattle (court appointed) for Wallway.
Thomas C. Phelan, Vancouver, WA, (court appointed) for Hoinowski.
Richard A. Melnick, Deputy Pros. Atty., Vancouver, WA, respondent.
In this consolidated appeal, Donald Ray Wallway and Daniel Hoinowski each appeal their conviction on a charge of unlawful manufacture of a controlled substance. Both contend that the trial court erred in not suppressing evidence seized pursuant to a search warrant, and in refusing to order disclosure of the identity of a confidential informant. Wallway, alone, contends that the information charging him with unlawful manufacture of a controlled substance was deficient in that it did not include all of the elements of the charge. We affirm each defendant's conviction.
On February 27, 1989, a Clark County District Court judge issued a warrant to search four residences in Clark County. The residences allegedly housed marijuana growing operations. One of the residences was occupied by Donald Ray Wallway. 1 Another was occupied by Daniel Hoinowski. The district court judge ordered that the searches take place within 10 days of the date the warrant issued.
The basis for the search warrant was an affidavit prepared by Clark County Deputy Sheriff Mike Nolan, a member of the Clark-Skamania Narcotics Task Force. Nolan's affidavit was based, in large part, on information he received from what he described as a "confidential, reliable informant". The identity of the informant was known to the law enforcement officers but it was not disclosed to the district court judge who issued the warrant.
On March 6, 1989, the search warrant was executed at the Wallway and Hoinowski residences by Clark County law enforcement officers. A search of a building on the property occupied by Wallway produced 48 growing marijuana plants as well as equipment used to grow the marijuana. A search of Hoinowski's residence turned up 21 growing marijuana plants and equipment commonly used in grow operations (e.g., halide lights and shields).
Wallway and Hoinowski were separately charged with unlawful manufacture of a controlled substance, possession of a controlled substance with intent to deliver, and possession of over 40 grams of a controlled substance. Each moved to suppress the evidence obtained in the search of their premises, claiming that the warrant was not executed in a timely fashion. They claimed, also, that the search warrant was defective because the (1) informant's credibility and basis of knowledge were not established by the affidavit; (2) information provided by the informant was stale; and (3) supporting affidavit contained material omissions. Their motions were denied.
Wallway and Hoinowski each moved for an order requiring the disclosure of the informant's identity. Alternatively, they asked the superior court to hold an in-camera hearing with the informant to assess his or her reliability. After conducting an in-camera hearing, the trial court denied their motions to disclose the informant's identity.
Wallway and Hoinowski were both convicted of unlawful manufacture of a controlled substance.
Wallway alone contends that the information charging him with unlawful manufacture of a controlled substance violated his due process rights because it failed to provide him with adequate notice of the elements of the crime with which he was charged. Under the Sixth Amendment, Const art. 1, § 22 (amend. 10), and CrR 2.1(b), an information must include the statutory and essential common law elements of the crime charged in order to apprise the accused of the nature of the charge so he or she can prepare an adequate defense. See State v. Kjorsvik, 117 Wash.2d 93, 97-102, 812 P.2d 86 (1991). A charging document that does not articulate all of the elements of the crime with which the defendant is charged may violate the defendant's due process rights. See Kjorsvik, 117 Wash.2d at 107, 812 P.2d 86; State v. Leach, 113 Wash.2d 679, 691, 782 P.2d 552 (1989).
Wallway did not raise this issue at the trial court. Nevertheless, a challenge to the constitutional sufficiency of a charging document may be raised for the first time on appeal. Kjorsvik, 117 Wash.2d at 102, 812 P.2d 86. When that occurs, however, the reviewing court must construe the document more liberally in favor of validity than it would if it were challenged before or during trial. Kjorsvik, 117 Wash.2d at 105-08, 812 P.2d 86. 2 Under that standard, the reviewing court asks:
(1) [D]o the necessary facts appear in any form, or by fair construction can they be found, in the charging document; and, if so, (2) can the defendant show that he or she was nonetheless actually prejudiced by the inartful language which caused a lack of notice?
Kjorsvik, 117 Wash.2d at 105-06, 812 P.2d 86.
The information which charged Wallway read as follows:
That ... Donald Ray Wallway ... in the County of Clark, State of Washington, on or about the 6th day of March, 1989, did unlawfully manufacture a controlled substance, to-wit: Marijuana, in violation of RCW 69.50.401(a), contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Washington.
(Italics ours.)
Wallway contends that the information was defective because it did not specify the mens rea necessary to commit the offense. As noted above, the State alleged that Wallway violated RCW 69.50.401(a). That statute provides in part:
Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.
(Italics ours).
The portion of the statute making it unlawful to manufacture a controlled substance does not specify that guilty knowledge is an element of that offense. Accordingly, at issue is whether guilty knowledge is intrinsically an element of the charge of unlawful manufacture of a controlled substance.
In State v. Boyer, 91 Wash.2d 342, 344, 588 P.2d 1151 (1979), the Supreme Court held that guilty knowledge (i.e., an understanding of the identity of the product being delivered), is an element of the charge of unlawful delivery of a controlled substance under RCW 69.50.401(a). It said:
[W]ithout the mental element of knowledge, even a postal carrier would be guilty of the crime were he innocently to deliver a package which in fact contained a forbidden narcotic. Such a result is not intended by the legislature.
Boyer, 91 Wash.2d at 344, 588 P.2d 1151.
On the other hand, in State v. Sims, 119 Wash.2d 138, 142, 829 P.2d 1075 (1992), the Court held that it is not necessary to allege that a person acted with guilty knowledge when that person is charged under RCW 69.50.401(a) with possession of a controlled substance with intent to manufacture or deliver. The Court reasoned that:
[t]he statutory elements of the crime of unlawful possession of a controlled substance with intent to manufacture or deliver include the requisite mental state, i.e., the intent to manufacture or deliver a controlled substance.
It is impossible for a person to intend to manufacture or deliver a controlled substance without knowing what he or she is doing. By intending to manufacture or deliver a controlled substance, one necessarily knows what controlled substance one possesses as one who acts intentionally acts knowingly.
Sims, 119 Wash.2d at 142, 829 P.2d 1075.
Likewise, in State v. Cleppe, 96 Wash.2d 373, 378-81, 635 P.2d 435 (1981), the Court held that guilty knowledge was not an element of the crime of possession of a controlled substance.
For purposes of this case, we assume that guilty knowledge is an element of the crime of unlawful manufacture of a controlled substance. Nevertheless, applying Kjorsvik's standard of liberal, post-verdict review, we conclude that the information in this case was adequate enough to withstand Wallway's attack. The term "manufacture" includes "the production, preparation, propagation ... or processing of a controlled substance...." RCW 69.50.101(o ). The term "production" includes the planting, cultivation, growing, or harvesting of a controlled substance. RCW 69.50.101(w). Activities such as producing, preparing, propagating, processing, planting, cultivating, growing or harvesting a plant almost always take place with knowledge of the nature of the plant. Thus, under Kjorsvik's liberal standard, an allegation that the accused manufactured marijuana is at the same time an allegation that the accused had knowledge of the identity of the substance being manufactured.
Additionally, the information in this case alleges that the defendant "unlawfully" manufactured a controlled substance, and the Supreme Court recently implied that the word "unlawfully" may be enough to allege knowledge when knowledge is an element of a drug case. In dictum in State v. Johnson, 119 Wash.2d 143, 149, 829 P.2d 1078 (1992), the court said:
We do not, therefore, hold "unlawfully", standing alone, will never be enough to allege knowledge. In fact, when liberally construing an information challenged for the first time on appeal, we have held "unlawfully" sufficient to allege intent, unless there is prejudice to the defendant. See, e.g., Kjorsvik, 117 Wash.2d at 110-11 .
What we have said is not refuted by the fact that it is possible to conceive of a case in which a person might cultivate, grow or harvest marijuana without knowledge of its identity. Commonly, manufacture of marijuana involves knowledge of the identity of the plant being cultivated. Rarely, it might not. Applying Kjorsvik's liberal standard of review, however, we think that an ordinary...
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