State v. Whitney

• Decision Date: 17 December 1981
• Docket Number: No. 47035-9,47035-9
• Parties: The STATE of Washington, Respondent, v. Eldon Lee WHITNEY, Appellant.
• Court: Washington Supreme Court

Page 578

96 Wn.2d 578

637 P.2d 956

The STATE of Washington, Respondent, v. Eldon Lee WHITNEY, Appellant.

No. 47035-9.

Supreme Court of Washington, En Banc.

Dec. 17, 1981.

Public Defender's Office, Richard H. Adler, Seattle, for appellant.

Norman K. Maleng, Pros. Atty., Linda G. Walton and Sharon Creeden, Deputy Pros. Attys., Seattle, for respondent.

ROSELLINI, Justice.

A police detective, aided by an informant, persuaded one Scalese to put him in touch with a seller of marijuana. The appellant was contacted and delivered five "pound" bags of the substance to the detective, in the presence of Scalese, at which time both he and Scalese were arrested. The two, charged with possession with intent to manufacture or deliver, were granted separate trials. The jury in the Scalese trial, which was held first, found the defendant not guilty. Scalese had defended on the grounds of alleged entrapment and lack of proof of possession. The attorney for Scalese, Richard Hanson, signed an affidavit in which he declared that jurors in the case had told him that they found Scalese had been entrapped by police officers. The Hanson affidavit detailed the evidence upon which the jury might have found that Scalese had been entrapped.

This affidavit was presented to the superior court along with pretrial motions to suppress the use of the marijuana as evidence against the appellant, or in the alternative, to dismiss the prosecution under CrR 8.3(b). These motions were denied.

CrR 8.3(b) provides:

(b) On Motion of Court. The court on its own motion in the furtherance of justice, after notice and hearing, may dismiss any criminal prosecution and shall set forth its reasons in a written order.

The discretion conferred upon the superior court under this rule must be exercised in conformity with the requirement that the record show governmental misconduct or arbitrary action of the type which this court has historically found sufficient to support a dismissal of a criminal charge. State v. Burri, 87 Wash.2d 175, 550 P.2d 507 (1976); State v. Starrish, 86 Wash.2d 200, 544 P.2d 1 (1975). The purpose of the rule is to see that one charged with crime is fairly treated. State v. Satterlee, 58 Wash.2d 92, 361 P.2d 168 (1961).

In State v. Baker, 78 Wash.2d 327, 474 P.2d 254 (1970), this court said:

Dismissal of charges is an extraordinary remedy. It is available only when there has been prejudice to the rights of the accused which materially affected the rights of the accused to a fair trial and that prejudice cannot be remedied by granting a new trial.

Baker, at 332-33, 474 P.2d 254.

Aside from the inadequacy of the attorney's affidavit to establish that Scalese was entrapped by police officers, ¹ the appellant offers no authority that entrapment of an accomplice is a proper ground for dismissal of a prosecution. Such entrapment may have been a defense to the prosecution of Scalese, but it is no defense to the action against the appellant, much less a ground for dismissal. He does not suggest that he himself was entrapped. Inasmuch as there was no showing that the appellant had been unfairly treated or that the alleged governmental misconduct toward Scalese affected in any way the appellant's right to a fair trial, the court did not err in refusing to dismiss.

The appellant suggests that the prosecution should have been denied the right to introduce the captured marijuana in evidence, because of the alleged entrapment of Scalese. He relies upon the fact that entrapment is contrary to public policy, as evidenced by the fact that it may be shown as a defense to a prosecution. RCW 9A.16.070. Because entrapment involves objectionable police conduct, the appellant maintains that the exclusionary rule, applied where evidence has been obtained in violation of the defendant's Fourth Amendment rights, should be adopted in entrapment cases, and further should be applied in a prosecution where evidence obtained through entrapment of one person is offered against another.

As we have already observed (see footnote 1), the alleged entrapment of Scalese was never established in this trial, or in the trial of Scalese himself. But assuming the fact were judicially established, we see no sound reason to adopt the exclusionary rule contended for by the appellant. That rule has been found necessary to secure to citizens the protection of their constitutional rights under the Fourth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). While entrapment is improper conduct on the part of police officers, it does not invade any independent constitutional right of the defendant. It is not a case of the government violating its own laws. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).

Next, the appellant argues that his indictment should have been dismissed because the police in making contact with Scalese allegedly used an informant who was regularly paid on a contingent fee basis. There is nothing in the record of this case to show that such was the fact. Nor does the record show that the evidence presented against the defendant was gathered by an informant.

In Williamson v. United States, 311 F.2d 441 (5th Cir. 1962), it was held that without some justification or explanation, the courts cannot sanction a contingent fee agreement which requires the informer to pursue a named individual and involve him in the commission of a crime. However, the Ninth Circuit refused to follow Williamson in a case where the government had paid bounties for the arrest of a designated individual. The Ninth Circuit court said, however, that if the reward was offered for obtaining a conviction there would be a legitimate objection, since it would tend to encourage perjury. (United States v. Ladley, 517 F.2d 1190 (9th Cir. 1975); accord, United States v. Cuomo, 479 F.2d 688 (2d Cir. 1973).) It is not contended that the informant here was paid a specific sum of money to procure the arrest of a specific individual, or that he was paid to obtain the conviction of a person informed against.

Since neither of these evils was present here, and, moreover, no evidence procured by an informer was used against the appellant, we need not decide here to what extent improper payments to such an agent should affect the trial of an accused.

Finally, appellant argues that after enactment of the Controlled Substances Therapeutic Research Act of 1979, marijuana's classification as a schedule I drug no longer bears a rational relationship to a legitimate state purpose. Appellant's constitutional challenge is based on the fact that, under the statutory definition, marijuana belongs in schedule I only if it has no accepted medical use in treatment in the United States. RCW 69.50.203. Appellant points out that the Controlled Substances Therapeutic Research Act recognizes that there may be medical uses of marijuana for cancer and glaucoma sufferers and perhaps others. RCW 69.51.040(2).

The 1979 act sets up a...