State v. Zillyette

• Decision Date: 01 August 2013
• Docket Number: No. 87614–2.,87614–2.
• Citation: 307 P.3d 712,178 Wash.2d 153
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Brenda J. ZILLYETTE, Petitioner.

178 Wash.2d 153

307 P.3d 712

STATE of Washington, Respondent,

v.Brenda J. ZILLYETTE, Petitioner.

No. 87614–2.

Supreme Court of Washington, En Banc.

Aug. 1, 2013.

John A. Hays, Attorney at Law, Longview, WA, for Petitioner.

Gerald R. Fuller, Grays Harbor Co. Pros. Office, Grays Harbor Co. Prosecutor's Office, Attorney at Law, Montesano, WA, for Respondent.

FAIRHURST, J.

[178 Wash.2d 156]¶ 1 The State charged Brenda J. Zillyette with controlled substances homicide for the death of Austin Burrows. The information charging Zillyette with controlled substances homicide did not identify the controlled substance that Zillyette allegedly delivered to Burrows that resulted in Burrows' death. The trial court convicted Zillyette of the crime charged, and the Court of Appeals affirmed. We reverse because the information failed to set forth all of the essential elements of the crime of controlled substances homicide.

FACTS AND PROCEDURAL HISTORY

¶ 2 Burrows died after ingesting large quantities of two prescription drugs—Xanax and methadone. After investigators discovered that Burrows had received the drugs from Zillyette, the State charged Zillyette with controlled substances homicide. The information filed by the State alleged:

That the said defendant, Brenda J. Zillyette, in Grays Harbor County, Washington, on or about March 31,-April 1, 2009 did unlawfully deliver a controlled substance to Austin Burrows in violation of RCW 69.50.401, which controlled substance was subsequently used by Austin Burrows, resulting in his death;

CONTRARY TO RCW 69.50.415 and against the peace and dignity of the State of Washington.

Clerk's Papers (CP) at 1. After a bench trial, the trial court convicted Zillyette of the charged crime and sentenced her to 55 months in prison. Zillyette appealed her conviction, alleging that (1) the State's evidence was insufficient under the rule of corpus delicti, and (2) the information was invalid because it did not identify what controlled substance caused Burrows' death.

¶ 3 The Court of Appeals, Division Two affirmed Zillyette's conviction, holding that the State satisfied the corpus delicti rule and that, regardless of whether the information was valid, Zillyette's assignment of error failed because she did not show actual prejudice. State v. Zillyette, 163 Wash.App. 124, 256 P.3d 1288 (2011). Zillyette sought review from this court, which we granted. This court reversed the decision and remanded to the Court of Appeals, instructing the lower court to analyze whether the information was sufficient before analyzing whether Zillyette was prejudiced. State v. Zillyette, 173 Wash.2d 784, 786, 270 P.3d 589 (2012). On remand, the Court of Appeals affirmed Zillyette's conviction a second time, holding that the information was sufficient because the specific identity of the controlled substance is only an essential element when it aggravates the penalty of the crime. State v. Zillyette, 169 Wash.App. 24, 26, 278 P.3d 1144 (2012) (citing State v. Goodman, 150 Wash.2d 774, 786, 83 P.3d 410 (2004)).

¶ 4 Zillyette petitioned for review on the information issue only, which we granted. State v. Zillyette, 175 Wash.2d 1022, 291 P.3d 253 (2012).

ISSUES

¶ 5 A. Is the identity of the controlled substance an essential element of controlled substances homicide?

¶ 6 B. Is an information charging a defendant with controlled substances homicide sufficient if it fails to specify the particular controlled substance, or schedule of controlled substances, that caused the victim's death?

ANALYSIS

A. Is the identity of the controlled substance an essential element of controlled substances homicide ?

¶ 7 “All essential elements of a crime ... must be included in a charging document in order to afford notice to an accused of the nature and cause of the accusation against him.” State v. Kjorsvik, 117 Wash.2d 93, 97, 812 P.2d 86 (1991). The essential elements rule is grounded in the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington State Constitution. U.S. Const. amend. VI (“In all criminal prosecutions, the accused shall ... be informed of the nature and cause of the accusation.”); Wash. Const. art. I, § 22 (“In criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation against him.”); see alsoCrR 2.1(a)(1) (“[T]he information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.”). “We review allegations of constitutional violations de novo.” State v. Siers, 174 Wash.2d 269, 273–74, 274 P.3d 358 (2012).

¶ 8 “An ‘essential element is one whose specification is necessary to establish the very illegality of the behavior’ charged.” State v. Ward, 148 Wash.2d 803, 811, 64 P.3d 640 (2003) (quoting State v. Johnson, 119 Wash.2d 143, 147, 829 P.2d 1078 (1992)). “ ‘[E]ssential elements' include only those facts that must be proved beyond a reasonable doubt to convict a defendant of the charged crime.” State v. Powell, 167 Wash.2d 672, 683, 223 P.3d 493 (2009) (lead opinion) (quoting State v. McCarty, 140 Wash.2d 420, 425, 998 P.2d 296 (2000)), overruled on other grounds by Siers,174 Wash.2d at 276, 274 P.3d 358 (adopting the position advanced by the lead opinion in Powell ). Essential elements include statutory and nonstatutory elements. Kjorsvik, 117 Wash.2d at 101–02, 812 P.2d 86.

¶ 9 “The primary goal of the ‘essential elements' rule is to give notice to an accused of the nature of the crime that he or she must be prepared to defend against.” Id. at 101, 812 P.2d 86. A secondary purpose for the essential elements rule is to bar “ ‘any subsequent prosecution for the same offense.’ ” State v. Nonog, 169 Wash.2d 220, 226, 237 P.3d 250 (2010) (quoting State v. Leach, 113 Wash.2d 679, 688, 782 P.2d 552 (1989)).

¶ 10 RCW 69.50.415(1) defines the crime of controlled substances homicide: “A person who unlawfully delivers a controlled substance in violation of RCW 69.50.401(2)(a), (b), or (c) which controlled substance is subsequently used by the person to whom it was delivered, resulting in the death of the user, is guilty of controlled substances homicide.” RCW 69.50.401(2) is divided into five subsections: (a)-(e). But as expressly stated in RCW 69.50.415(1), only subsections (a)-(c) apply to controlled substances homicide.

¶ 11 Under RCW 69.50.401(2)(a), a person may be guilty of controlled substances homicide if he or she delivers a Schedule I ¹ or II ² narcotic drug (or flunitrazepam) to another who subsequently dies from using the controlled substance. Under RCW 69.50.401(2)(b), a person may be guilty of controlled substances homicide if he or she delivers amphetamine or methamphetamine to another who subsequently dies from using the controlled substance. Under RCW 69.50.401(2)(c), a person may be guilty of controlled substances homicide if he or she delivers “[a]ny other controlled substance classified in Schedule I, II, or III” ³ to another who subsequently dies from using the controlled substance. RCW 69.50.401(2)(d) and (e) refer to Schedule IV ⁴ and Schedule V ⁵ controlled substances, respectively, but Schedule IV and V controlled substances cannot be the basis for controlled substances homicide (with the exception of flunitrazepam). RCW 69.50.415(1).

¶ 12 The specific identity of a controlled substance is not necessarily an essential element of controlled substances homicide. However, because not all controlled substances can be the basis for controlled substances homicide, some degree of specification “ ‘is necessary to establish the very illegality of the behavior’ charged” in order to charge a person with controlled substances homicide. Ward, 148 Wash.2d at 811, 64 P.3d 640 (quoting Johnson, 119 Wash.2d at 147, 829 P.2d 1078). To establish the illegality of controlled substances homicide, the State must at least specify the applicable RCW 69.50.401(2) subsection ((a), (b), or (c)) or identify the schedule of the controlled substance that caused the user's death. Simply alleging that an accused person delivered a controlled substance in violation of RCW 69.50.401 does not satisfy the essential element rule because it is over inclusive. That is, it alleges both criminal and noncriminal behavior.

¶ 13 This case clearly demonstrates why the identification of the controlled substance, or at least the schedule of the controlled substance, is an essential element of controlled substances homicide. The investigation of Burrows' death revealed that Burrows ingested both methadone and Xanax the night prior to his death. Methadone is a Schedule II controlled substance, RCW 69.50.206(c)(15), and falls under RCW 69.50.401(2)(a) because it is a “narcotic drug” as defined in RCW 69.50.101(x). Xanax (alprazolam),on the other hand, is a Schedule IV controlled substance. RCW 69.50.210(b)(1). Delivery of alprazolam is criminalized in RCW 69.50.401(2)(d). Alprazolam, however, cannot be the basis for controlled substances homicide because it is a Schedule IV controlled substance, which would fall under RCW 69.50.401(2)(d). Two different controlled substances were involved in Burrows' death, but only one of the controlled substances was a basis for controlled substances homicide. The identity of the controlled substance, or at least the schedule of the controlled substance, is an essential element of the crime of controlled substances homicide because such specification is necessary to establish the illegality of the act. Ward, 148 Wash.2d at 811, 64 P.3d 640.

¶ 14 The Court of Appeals found that the identity of the controlled substance is not an essential element to controlled substances homicide. Citing Goodman, the Court of Appeals stated that the identity of the controlled substance is only an essential element when it “aggravates the maximum sentence a court may impose.” Zillyette, 169 Wash.App. at 26–27, 278 P.3d 1144 (citing Goodman, 150 Wash.2d at 786, 83 P.3d 410). The Court...