State v. Worland

• Decision Date: 30 June 1978
• Docket Number: 2553-II,Nos. 2502-I,s. 2502-I
• Citation: 582 P.2d 539,20 Wn.App. 559
• Parties: The STATE of Washington, Respondent, v. Terry Lee WORLAND, Appellant. The STATE of Washington, Respondent, v. Harold L. O'FLAHERTY, Appellant.
• Court: Washington Court of Appeals

Page 559

20 Wn.App. 559

582 P.2d 539

The STATE of Washington, Respondent, v. Terry Lee WORLAND, Appellant.

The STATE of Washington, Respondent, v. Harold L. O'FLAHERTY, Appellant.

Nos. 2502-II, 2553-II.

Court of Appeals of Washington, Division 2.

June 30, 1978.

William L. Britton, Olympia, for appellants.

Richard A. Strophy, Deputy Pros. Atty., Olympia, for respondent.

SOULE, Judge.

Defendants Terry Worland and Harold O'Flaherty appeal their convictions for unlawful possession of a controlled substance. RCW 69.50.401(c). We reverse.

On March 20, 1976, police officers responded to a report that a Medic I unit had been called to the Angelus Hotel in Olympia to assist a man with a broken needle in his arm. On arrival, the officers saw defendant Worland at the top of the stairs outside Room 11. He was receiving medical attention from the Medic I team. The officers learned from bystanders that Worland lived in Room 11. Defendant O'Flaherty was present and told the officers that he also lived in Room 11. He refused to permit the police to search the room. Worland was taken to the hospital for emergency treatment. Officer Auderer accompanied him. At the hospital, before he was formally arrested but after being warned of his Miranda rights, Worland allegedly told Officer Auderer that he had been using heroin in Room 11.

Based on this information, a telephonic search warrant was obtained for Room 11. The search revealed a small quantity of marijuana, spoons with traces of barbiturates, a syringe with a needle and nearly empty capsules containing a residue of barbiturates. Both defendants were arrested and held in Thurston County jail. On Monday, March 22, an information was filed, charging the two with willfully unlawfully and feloniously possessing a controlled substance, to wit: barbiturates. O'Flaherty was arraigned the next day, while Worland was not arraigned until March 30. O'Flaherty obtained pretrial release but Worland did not.

On April 26 both defendants were tried in Olympia Municipal Court for possession of marijuana. O'Flaherty was convicted and Worland acquitted. On May 5, while awaiting trial, Worland was sentenced to five years on a prior conviction. At the trial on the barbiturates charge, the State presented evidence that both defendants lived in Room 11, that they shared the rent, and that the barbiturates were found in areas to which both defendants had access. No actual possession by O'Flaherty was proven, but there was evidence that Worland had had personal contact with similar spoons, the syringe and capsules on the preceding evening while O'Flaherty was absent. At the close of the State's case, O'Flaherty's attorney moved to dismiss the case against him because the State had presented no evidence that he willfully possessed the barbiturates as charged in the information. This motion was denied. A jury convicted both defendants.

In this consolidated appeal, the defendants make numerous assignments of error. Due to our disposition of the case, we find it necessary to address only five of them.

Initially, defendants challenge the sufficiency of the search warrant on the ground that there was no probable cause, the affidavit contained misstatements, and the facts contained in the affidavit were stale. A reasonable search is one based on probabilities a likelihood that evidence of criminal activity will be found. State v. Patterson, 83 Wash.2d 49, 515 P.2d 496 (1973). A magistrate's determination of probable cause may be based on common sense inferences from the facts and circumstances contained in the affidavit and should be treated with deference by a reviewing court. State v. Harris, 12 Wash.App. 481, 530 P.2d 646 (1975). In this case, the officers' telephonic affidavit informed the magistrate that a man who lived at the address in question had a broken needle in his arm and claimed to have injected heroin. From these facts, the magistrate was entitled to infer that evidence of drug possession might be found in Room 11. There is sufficient probable cause to support the search warrant.

Defendants argue further that even if the facts contained in the affidavit constitute probable cause, the warrant is invalid because the affidavit contains misstatements. They claim that Worland did not tell Officer Auderer that he had injected drugs in Room 11; rather, they now claim the police were told the drugs were used in Room 6. Intentional misstatements or misstatements of material facts will invalidate a search warrant. State v. Hink, 6 Wash.App. 374, 492 P.2d 1053 (1972). However, at the suppression hearing in the trial court, the trial judge chose to believe the testimony of the police rather than defendants and their witnesses. Questions of credibility are for the trial court and we will not reverse a finding which is supported by substantial evidence. Peter Pan Seafoods, Inc. v. Olympic Foundry Co., 17 Wash.App. 761, 565 P.2d 819 (1977).

Defendants also allege that because Worland had injected the drugs during the previous evening, the information contained in the affidavit was stale. The test for staleness is common sense; if it can be said from the facts contained in the affidavit that the information is recent and contemporaneous, then the affidavit cannot be considered stale. State v. Clay, 7 Wash.App. 631, 501 P.2d 603 (1972).

Defendant Worland contends that the doctrine of collateral estoppel applies and the State cannot try him for possession of the barbiturates following his municipal court acquittal for possession of marijuana. We note, however, that Worland did not raise the issue of collateral estoppel in the trial court. Issues not raised in the trial court will not be considered on appeal. State v. Lewis, 19 Wash.App. 35, 573 P.2d 1347 (1978). Were this issue properly before us, however, we would be unable to determine the merits because the record before us does not indicate what facts were necessarily determined at the marijuana trial. State v Morlock, 87 Wash.2d 767, 557 P.2d 1315 (1976); Hawk v. Mills, 476 P.2d 86 (Okl.Cr.1970).

Closely related to his collateral estoppel argument is Worland's claim of double jeopardy. The state (Const. art. 1, § 9) and the federal (Fifth Amendment) constitutions prohibit placing a defendant in jeopardy twice for the same offense. Washington adheres to the "same evidence" test for double jeopardy. State v. Morlock, supra; State v. Roybal, 82 Wash.2d 577, 512 P.2d 718 (1973). In this case, there is a difference in the evidence required to convict in the two trials. One requires proof of possession of marijuana and the other requires proof of possession of barbiturates. The proof in one case would not support a conviction in the other case. State v. Morlock, supra.

Worland contends he was denied a speedy trial. His argument consists of two prongs. He first claims that because he was in custody while awaiting trial, the 60-day rule of CrR 3.3(c) applies. Because his preliminary appearance was March 30 and trial was June 21, more than 60 days elapsed. The 60-day rule does not apply to Worland, however, because after May 5 he was being held on another sentence. Consequently he was unable to obtain pretrial release under CrR 3.3(c). That rule refers to the ability to obtain pretrial release because of the pendency of the current criminal charges. State v. Keith, 86 Wash.2d 229, 543 P.2d 235 (1975); State v. Curry, 14 Wash.App. 775, 545 P.2d 1214 (1976); State v. O'Neil, 14 Wash.App. 175, 540 P.2d 478 (1975). Worland next claims that even if the 90-day rule of CrR 3.3(b) applies, his right to a speedy trial was denied. Relying on the rationale of State v. Striker, 87 Wash.2d 870, 557 P.2d 847 (1976) and State v. Stanmore, 17 Wash.App. 61, 562 P.2d 251 (1977), he contends that for purposes of computing time, the date the information was filed, March 22, rather than the date of his preliminary appearance, March 30, should be used. We need not decide this issue, however, because even if the 90 days are counted from March 22, trial was still within the period. Even though June 21 is 91 calendar days after March 22, CrR 8.1 requires time to be computed in accordance with CR 6. The day before commencement of the trial, a Sunday, is not counted in computing the 90-day limitation of CrR 3.3(b). State v. Curry,supra. Therefore, Worland was tried within the 90-day period and was not denied his right to a speedy trial.

Both defendants challenge the sufficiency of the evidence to establish the identity of the suspected contraband. The State's expert witness, Marianne Uyeda, testified that she "concluded" that the substances were pentobarbital, a derivative of barbituric acid. Worland argues that because her testimony was in conclusionary rather than opinion form that this was insufficient proof. We disagree. It is clear from the context that Ms. Uyeda was expressing her opinion; the precise form of the testimony is unimportant.

The defendant's next assignment of error involves instruction No. 9, which provides:

If you find from the evidence beyond a reasonable doubt that the defendant was on or about the dates set forth in the Information, in Thurston County, State of Washington, in possession of a controlled substance described in the Information herein, then I instruct you that unless you find evidence to the contrary, the presumption arises that this possession of such drug was unlawful and the burden of showing that possession of such drug was unwitting or otherwise lawful by the defendant is a matter of defense to be proved by evidence sufficient to raise in your minds a reasonable doubt as to the unlawfulness of the said defendant's possession of such drug.

Defendants challenge this instruction on the ground that it violates due process by impermissibly shifting the burden of proof as to an element of the crime. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Roberts, 88 Wash.2d 337, 562 P.2d 1259 (197...