Appeal from Superior Court, Honorable Richard L. Bechtolt JR. Judgment Date: 2-17-94.
Order Granting Motion for Reconsideration, In Part, Without New Argument February 7, 1997.
Authored by Charles Z. Smith. Concurring: Barbara Durham, James M. Dolliver, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge, Richard B. Sanders.
The opinion of the court was delivered by: Smith
SMITH, J. Petitioner Jody A. Miller seeks review of a decision of the Court of Appeals, Division II, concluding that omission of the element of delivery to a third person from a jury instruction defining the crime of conspiracy to deliver marijuana is harmless error. We granted review. We reverse the Court of Appeals.
The question presented in this case is whether it is harmless error for the trial court to instruct the jury on the crime of conspiracy to deliver marijuana without including the element of delivery to a third person.
Petitioner Jody A. Miller is incarcerated in the Washington Corrections Center (WCC) at Shelton. His wife, Mrs. Laura A. Miller, came to the Center for a "family trailer visit" *fn1 with him on August 6, 1993. She brought along and secreted in an intimate body cavity two yellow balloons and a plastic bag filled with marijuana, a controlled substance. Once in the visitation trailer, she removed the objects from her body cavity and left them in the bathroom for her husband and told him where to find them. Petitioner Miller found the balloons and bag with marijuana. In order to avoid their discovery, he ate a portion of the substance, and swallowed the balloons and the plastic bag with the remainder of the marijuana. *fn2 After Petitioner's wife left the family visitation trailer, he was removed from the trailer to a "dry watch cell," the authorities having reason to believe Petitoner should be placed on "dry cell watch." *fn3 Several hours later, in the presence of two observing officers, Petitioner Miller coughed up the balloons and the plastic bag containing the marijuana.
Inspector John Geier and Detective Shane Brooks interviewed Petitioner's wife. She provided a written statement indicating it was her idea to bring the marijuana to Petitioner because she needed money, she paid $120 for the marijuana, and her husband told her he could sell it to other prisoners for $300. She was unavailable at trial. The court allowed the officers to relate the details of their interview with her. *fn4 Inspectors Dean Mason and John Geier then interviewed Petitioner Miller. He told them a different story. He said he asked his wife to bring the marijuana to him so he could repay a drug debt to another prisoner. Although he admitted he gave his wife instructions for acquiring the marijuana, he would not provide any additional information to the investigators. *fn5 On January 7, 1994, the Prosecuting Attorney filed in the Mason County Superior Court a second amended Information in three counts charging Petitioner with possession of marijuana with intent to deliver, conspiracy to deliver marijuana, and possession of a controlled substance in a correctional facility. The Information read in its entirety: *fn6
That said defendant, JODY A. MILLER, in Mason County, Washington, on or about August 6, 1993, did knowingly possess a controlled substance with the intent to deliver such substance, to-wit: possessed marijuana with the intent to deliver it to other inmates of the Washington Correctional Center.
SPECIAL ALLEGATION: (RCW 9.94A. 310(4)(b): [sic] The offense stated in Count I was committed while the defendant was in a ...