Opinion
No. 31416-9-II
Filed: May 3, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Lewis County. Docket No: 03-1-00340-3. Judgment or order under review. Date filed: 02/09/2004. Judge signing: Hon. H John Hall.
Counsel for Appellant(s), Jodi R. Backlund, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Manek R. Mistry, Backlund Mistry, 203 4th Ave E Ste 217, Olympia, WA 98501-1187.
Counsel for Respondent(s), J. Andrew Toynbee, Attorney at Law, M/S Pr001, 360 NW North St, Chehalis, WA 98532-1925.
Brian Grant Spicer appeals a conviction for delivery of a controlled substance. We affirm.
On November 24, 2002, Michelle Graham agreed to make a controlled buy of methamphetamine (meth) as a means of working off her own meth charge. Two days later, on November 26, she made the promised buy at Spicer's house. Having entered the house without drugs, she emerged with meth that she claimed to have purchased from Spicer.
On December 3, a magistrate issued a search warrant for Spicer's house. On December 9, officers served the warrant and found contraband. The State initially charged Spicer with possession of a controlled substance with intent to deliver, committed on or about December 9, 2002. But the State soon moved to dismiss, and the trial court granted the motion.
On April 22, 2003, the State charged Spicer with delivery of a controlled substance. It alleged that Spicer had delivered meth to Graham on November 26, 2002.
On June 12, 2003, Spicer moved to dismiss the delivery charge. Citing CrR 4.3.1, he argued that the State had failed to join it with the earlier possession charge, and thus that it was now barred. The trial court denied the motion because the offenses `are separate and distinct criminal acts, composed of different elements, that occurred on two different days and involved different factual scenarios and different participants.'
Clerk's Papers (CP) at 23.
The delivery case went to trial in December 2003. During jury selection, defense counsel asked whether any prospective juror was `having a hard time starting out with the presumption of innocence.' Juror 38 replied, `Yeah, he looks familiar. He looks familiar and with a group [of] people who are affiliated with methamphetamine.' Instead of objecting, defense counsel then asked other prospective jurors how they would feel about starting `with the presumption of guilt' and requiring the defendant `to prove otherwise.' Juror 7 stated that that he or she would not be comfortable if it were the other way around. Juror 6 stated, `I think it should be the way it is in America.' Juror 14 stated that `I think a person needs to be proven that he is guilty if he is guilty.' Juror 22 stated that `I prefer our legal system the way it is.' Juror 27 stated that one should `presume a person to be innocent and it is up to the state to prove that he isn't.' Jurors 3, 9, 18, 20, 24, and 39 agreed that the presumption of innocence was appropriate. At the end of jury selection, the court seated Jurors 3, 4, 6, 7, 9, 14, 18, 20, and 39, but not Juror 38. Before jury selection and again at the end of the evidence, the trial court instructed that the defendant was presumed innocent unless and until the State met its burden of proof.
Report of Proceedings (RP) (Dec. 4, 2003) at 46.
RP (Dec. 4, 2003) at 46.
RP (Dec. 4, 2003) at 46.
RP (Dec. 4, 2003) at 47.
RP (Dec. 4, 2003) at 48.
RP (Dec. 4, 2003) at 48.
RP (Dec. 4, 2003) at 49.
During the evidentiary phase, Graham testified that she was a drug addict who used meth every day, and that she had bought and sold meth for at least two and a half years. She had met Spicer about two years before making the controlled buy, that they `knew the same group of people,' and that she had been to his house five to seven times. She had been reluctant to make a controlled buy from Spicer because she and he `had a trust with each other and I didn't want to lose that trust.' On November 26, 2002, she had been strip searched, then gone to Spicer's house in the company of a police officer. She entered the home, walked into Spicer's bedroom, and the following occurred:
RP (Dec. 4, 2003) at 89.
RP (Dec. 4, 2003) at 92.
Q: What did you do when you got to the bedroom?
A: I set on the edge of the bed and I placed the 20 down on the bed and said I needed to get something.
Q: Did you use the word methamphetamine?
A: No.
Q: Why not?
A: Just because . . . the word methamphetamine isn't used.
Q: That's just the typical thing you would do?
RP (Dec. 4, 2003) at 96.
Spicer gave her `a 20 sack' of meth, which she asked him to weigh. After he did that, she left.
RP (Dec. 4, 2003) at 97.
The defense called three witnesses. Kelli Jo Wesen testified that she had been at Spicer's home that night, that Graham had not gone into Spicer's bedroom, and that Graham had not bought meth from Spicer. Lyndon Parkhill testified that he had heard Graham say during a party that she had not bought meth from Spicer. Kristina Gallagher testified that while she and Graham were in jail together, Graham had said she did not buy meth from Spicer. Graham denied ever saying that she had not bought meth from Spicer.
At the conclusion of the evidence, the trial court required the jury to find that Spicer knew the substance was meth. The court stated:
To convict the Defendant of the crime of Delivery of a Controlled Substance as charged, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about the 26th day of November, 2002, the Defendant delivered a controlled substance;
(2) That the Defendant knew the substance was methamphetamine; and
(3) That the acts occurred in the State of Washington.
CP at 15.
Spicer was found guilty, sentenced, and filed this appeal.
I.
The first issue is whether the State failed to join related offenses. Spicer contends that the charge that the State initially filed but then dismissed, possession of a controlled substance with intent to deliver, and the charge in issue here, delivery of a controlled substance, were `related offenses' such that CrR 4.3.1 bars the present case.
CrR 4.3.1(b)(3) states:
A defendant who has been tried for one offense may thereafter move to dismiss a charge for a related offense. . . . The motion to dismiss must be made prior to the second trial, and shall be granted unless the court determines that because the prosecuting attorney was unaware of the facts constituting the related offense or did not have sufficient evidence to warrant trying this offense at the time of the first trial, or for some other reason, the ends of justice would be defeated if the motion were granted.
CrR 4.3.1 requires that `related offenses must be joined' even if the earlier one was disposed of by dismissal rather than trial. Offenses are `related' if they occur `within the jurisdiction and venue of the same court and are based on the same conduct.' Offenses are based on the `same conduct' if they are based on `a single criminal incident or episode' or `the same physical act or omission or same series of physical acts[,]' or if they occur `in close proximity of time and place, where proof of one offense necessarily involves proof of the other.'
State v. Ramos, 124 Wn. App. 334, 101 P.3d 872 (2004) (quotation omitted).
See State v. Dixon, 42 Wn. App. 315, 711 P.2d 1046 (1985) (initial charge of discharging a firearm dismissed after only witness would not testify; later charge of being a felon in possession of a firearm was a related offense that should have been joined, and thus was dismissed).
CrR 4.3.1(b)(1).
State v. Lee, 132 Wn.2d 498, 503, 939 P.2d 1223 (1997).
State v. Kindsvogel, 149 Wn.2d 477, 483, 69 P.3d 870 (2003); Lee, 132 Wn.2d at 503-04.
State v. Thompson is on point here. In that case, the defendant was first charged with possession stemming from a January 17, 1981 cocaine arrest. He was later charged with delivery stemming from undercover buys in November 1980, December 1980, and early January 1981. The offenses did not involve the same conduct and were not related.
36 Wn. App. 249, 673 P.2d 630 (1983), review denied, 101 Wn.2d 1002 (1984).
As in Thompson, the offenses here were committed on different dates, and either was provable without the other. The first, possession of a controlled substance with intent to deliver, was committed (if at all) on December 6, 2002. The second, delivery of a controlled substance, was committed on November 26, 2002. The first depended on the testimony of the officers who executed the warrant. The second depended on Graham's testimony. The trial court did not err by denying Spicer's motion to dismiss.
II.
The second issue is whether Spicer had a fair and impartial trial by jury. He says he did not because the jury venire was tainted by Juror 38's remarks.
The Sixth Amendment guarantees a defendant the right to trial before an impartial jury. A defendant does not waive that right merely by failing to object at trial. The right includes the presumption of innocence.
Turner v. Murray, 476 U.S. 28, 36 n. 9, 106 S. Ct. 1683, 90 L.Ed.2d 27 (1986).
State v. Johnson, 90 Wn. App. 54, 72, 950 P.2d 981 (1998).
State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967, cert. denied, 528 U.S. 922 (1999).
Here, the trial court instructed on reasonable doubt and the presumption of innocence at the beginning of jury selection and at the end of the evidence. Juror 38 did not sit. Several jurors who did sit said in effect, after Juror 38's remarks, that they agreed with the presumption of innocence. Juror 38's remarks were without consequence, and Spicer was not deprived of an impartial jury or the presumption of innocence.
This conclusion also disposes of Spicer's claim that his attorney rendered ineffective assistance by not objecting to Juror 38's remarks. Counsel's tactic of questioning other jurors was objectively reasonable, and there was no prejudice. See State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995).
III.
The last issue is whether the evidence is sufficient to support Spicer's conviction. It is if, viewed in the light most favorable to the State, `it allows any rational trier of fact to find all of the elements of the crime charged beyond a reasonable doubt.' Although the elements of delivery include knowledge that the substance is controlled, they do not include knowledge that the substance is meth unless the trial court instructs that they do. The trial court so instructed here, so the question is whether a rational trier of fact could find beyond a reasonable doubt that Spicer knew the substance he was delivering was meth. The answer is yes. Spicer and Graham had been acquainted for some time. She used meth every day. While he and she were in his bedroom, with a third person, she put $20 on the bed and asked for a `20 bag.' He produced and weighed a `chunky white material' that later tested as methamphetamine and two cutting agents. Although Graham did not specify that she was asking for meth, the jury could reasonably infer that she was, that Spicer knew that she was, and that Spicer knowingly delivered meth. The evidence is sufficient to support the conviction.
State v. DeVries, 149 Wn.2d 842, 849, 72 P.3d 748 (2003) (citing State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)).
DeVries, 149 Wn.2d at 849-50.
State v. Nunez-Martinez, 90 Wn. App. 250, 254, 951 P.2d 823 (1998).
State v. Hickman, 135 Wn.2d 97, 102, 954 P.2d 900 (1998).
RP (Dec. 4, 2003) at 141.
This conclusion also disposes of Spicer's argument that he did not know he was delivering a controlled substance.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J. and QUINN-BRINTNALL, C.J., concur.