Appeal from Superior Court, Cowlitz County. 92-1-00600-3. Honorable Don L. McCulloch, Judge.
As Corrected February 6, 1997.
Authored by James M. Dolliver. Concurring: Barbara Durham, Charles Z. Smith, 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: Dolliver
DOLLIVER, J.--Defendant, Shelley Sue Smith, challenges her conviction for conspiracy to commit first degree murder on the basis that the "to convict" instruction omitted an element of the crime and was thus constitutionally defective. Defendant was convicted of attempted murder of her fiance, James Jeffers, and conspiracy to commit murder of her ex- husband, David Smith.
Defendant drove Jeffers to a remote area on Thanksgiving evening, 1992, where Jeffers was shot and seriously wounded by a third person. During the course of the investigation of the Jeffers shooting, Jeffers told police that Defendant had written him a letter pleading with him to help her get rid of her former husband, David Smith. Further investigation revealed that Defendant and David Smith had an ongoing custody dispute involving their daughter, Kendra.
Defendant's mother, Marjorie Franklin, cared for Kendra most of the time. Franklin frequently expressed intense hatred for David Smith. Jeffers told police that both Franklin and Defendant asked him to kill David Smith or find someone who would. He offered two acquaintances $500 to kill David Smith. Jeffers understood from Franklin that she would provide the money.
This appeal involves only the conviction for conspiracy to murder David Smith. On the conspiracy count, the information alleged that, with intent that conduct constituting first degree murder be performed, Defendant feloniously agreed with Jeffers, Franklin, and others unknown to engage in or cause the performance of such conduct and that one or more of them took a substantial step in the performance of such agreement.
The court's Instruction 13 says that, to convict Defendant of criminal conspiracy, the following elements must be proved beyond a reasonable doubt: Between 1990 and November 1992, Defendant "agreed with Marjorie Franklin and James Jeffers to engage in . . . the performance of conduct constituting the crime of Conspiracy to Commit Murder in the First Degree," the Defendant "made the agreement with the intent that such conduct be performed," and that "any one of the persons involved in the agreement took a substantial step in pursuance of the agreement . . . ." Clerk's Papers at 32 (emphasis added). The court correctly defined "first degree murder" in a separate instruction. Clerk's Papers at 31. The court also correctly defined "conspiracy" (Clerk's Papers at 26), correctly defined "substantial step" (Clerk's Papers at 30), and instructed the jury to disregard any remark, statement, or argument that is not supported by the evidence or the law as given by the court (Clerk's Papers at 18).
The prosecutor referred to the conspiracy "to convict" instruction in closing argument and said, "the agreement has to be with one or more to cause the death of" another person. Report of Proceedings at 303. The prosecutor argued the State had proven the Defendant conspired with Franklin and Jeffers to kill David Smith and had taken several substantial steps toward that goal by soliciting various people to kill him.
The jury found Defendant guilty on both counts. While Defendant's appeal was pending, Jeffers recanted his testimony and pleaded guilty to perjury. Defendant filed a personal restraint petition raising Jeffers' recantation as newly discovered evidence. The Court of Appeals agreed that an evidentiary hearing was needed on that issue, but otherwise rejected Defendant's challenges to her convictions. State v. Smith, 80 Wash. App. 462, 909 P.2d 1335, review granted, 129 Wash. 2d 1019 (1996). Although the court agreed with Defendant that the instruction did not properly list all the elements of the offense, the court held that the instructions as a whole were adequate to advise the jury of the conspiracy charge. Smith, 80 Wash. App. at 468-69. I
Defendant contends that Instruction 13, the "to convict" instruction on the conspiracy charge, failed to list all of the elements of the crime and is thus constitutionally defective. Instruction 13 required the jury to find beyond a reasonable doubt that Defendant "agreed with Marjorie Franklin and James Jeffers to engage in . . . the performance of conduct constituting the crime of Conspiracy to Commit Murder in the First Degree[.]" Clerk's Papers at 32. Instead of listing the elements of conspiracy to commit first degree murder, the instruction described the even more inchoate crime of conspiracy to commit conspiracy to commit murder.
There is no dispute that the instruction is defective. The State concedes that the phrase, "'crime of Conspiracy to Commit Murder in the First Degree' should have read, 'crime of Murder in the First Degree' since First Degree Murder was the subordinate crime of the alleged conspiracy." Supplemental Br. of Resp't at 1-2.
The Court of Appeals acknowledged that Instruction 13 was defective, but held that the instructions as a whole were sufficiently clear. Smith, 80 Wash. App. at 468. The court reasoned that, when read together, Instructions 7, 12, and 13 made it clear that murder was the subject crime of the conspiracy charge. Smith, 80 Wash. App. at 468. Instruction 7 defines criminal conspiracy as requiring the "intent that conduct constituting a crime be performed" and an agreement "to engage in or cause the ...