State v. Zillyette ( 2013 )

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This opinion"" was filed for reeord
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IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
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Respondent, ) No. 87614-2
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v. ) ENBANC
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AUG 012013
BRENDA J. ZILL YETTE, ) Filed:
)
Petitioner. )
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FAIRHURST, J.-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.
State v. Zillyette, No. 87614-2
FACTS AND PROCEDURAL HISTORY
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
ofthe 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.
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
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State v. Zillyette, No. 87614-2
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)).
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
A. Is the identity . of the controlled substance an essential element of
controlled substances homicide?
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?
"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).
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State v. Zillyette, No. 87614-2
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 also CrR 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).
"An 'essential element is one whose specification is necessary to establish
the very illegality ofthe 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 Wn.2d at 276 (adopting the position advanced by the lead opinion in
Powell). Essential elements include statutory and nonstatutory elements. Kjorsvik,
117 Wn.2d at 101-02.
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State v. Zillyette, No. 87614-2
"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. 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)).
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.
Under RCW 69.50.401(2)(a), a person may be guilty of controlled
substances homicide if he or she delivers a Schedule 11 or II2 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
1
RCW 69.50.204.
2
RCW 69.50.206.
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State v. Zillyette, No. 87614-2
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 IV4 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).
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 Wn.2d at 811 (quoting Johnson, 119 Wn.2d at 147). 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
3
RCW 69.50.208.
4
RCW 69.50.210.
5
RCW 69.50.212.
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State v. Zillyette, No. 87614-2
satisfy the essential element rule because it is over inclusive. That is, it alleges both
criminal and noncriminal behavior.
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 Wn.2d at
811.
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State v. Zillyette, No. 87614-2
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 Wn. App. at 26-27 (citing Goodman, 150 Wn.2d at 786). The Court
of Appeals is correct that the identity of the controlled substance is an essential
element when the identity of the controlled substance aggravates the penalty a
court may impose. We further agree that the exact identity of the controlled
substance is not necessarily an essential element of controlled substances
homicide. But if the identity of the controlled substance is not specified, the
essential elements rule requires something more than simply alleging that a person
delivered a controlled substance. Specification of the identity of the controlled
substance, or, alternatively, the RCW 69.50.401(2) subsection ((a), (b), or (c)) or
the schedule of the controlled substance, is an essential element of controlled
substances homicide.
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?
When a defendant challenges the sufficiency of a charging document for the
first time on appeal, an appellate court will liberally construe the language of the
charging document in favor of validity. Kjorsvik, 117 Wn.2d at 105. "This method
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State v. Zillyette, No. 87614-2
of liberal construction permits us to fairly infer the apparent missing element from
the charging document's language." Goodman, 150 Wn.2d at 788. Liberal
interpretation "balances the defendant's right to notice against the risk of ...
'sandbagging'-that is, that a defendant might keep quiet about defects in the
information only to challenge them after the State has rested and can no longer
amend it." Nonog, 169 Wn.2d at 227 (citing Kjorsvik, 117 Wn.2d at 103).
In liberally construing the charging document, we employ the two-pronged
Kjorsvik test: (1) do the necessary elements appear in any form, or by fair
construction, on the face of the document and, if so, (2) can the defendant show he
or she was actually prejudiced by the unartful language. Kjorsvik, 117 Wn.2d at
105-06. If the defendant satisfies the first prong of the test, "we presume prejudice
and reverse without reaching the question of prejudice." McCarty, 140 Wn.2d at
425 (citing Kjorsvik, 117 Wn.2d at 105-06).
Under the first prong of the Kjorsvik test, we look solely to the face of the
information to determine if the essential elements of the crime appear in any form,
or by fair construction, in the charging document. 117 Wn.2d at 105. The
information must be read "as a whole and in a [commonsense] manner." !d. at 110-
11. Despite the liberal standard of interpreting the charging document in favor of
validity, '"[i]f the document cannot be construed to give notice of or to contain in
some manner the essential elements of a crime, the most liberal reading cannot
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State v. Zillyette, No. 87614-2
cure it."' State v. Moavenzadeh, 135 Wash. 2d 359, 363, 956 P.2d 1097 (1998)
(quoting State v. Campbell, 125 Wash. 2d 797, 802, 888 P.2d 1185 (1995)).
"More than merely listing the elements, the information must allege the
particular facts supporting them." Nonog, 169 Wn.2d at 226. The mere recitation
of a "numerical code section" and the "title of an offense" does not satisfy the
essential elements rule. City of Auburn v. Brooke, 119 Wash. 2d 623, 627, 836 P.2d
212 (1992); see also State v. George, 146 Wash. App. 906, 913, 193 P.3d 693 (2008)
(reversing conviction for possession of drug paraphernalia when charging
document simply stated, "RCW 69.50.412(i) Possession of drug paraphernalia."
(footnote omitted)). Requiring a defendant to locate the relevant code and
determine "the elements of the defense from the proper code section" is an "unfair
burden to place on an accused." Brooke, 119 Wn.2d at 635. "[D]efendants should
not have to search for the rules or regulations they are accused of violating." !d.
The particular facts necessary to charge Zillyette with controlled substances
homicide do not appear in any form, or by fair construction, in Zillyette's
information. To effectively charge Zillyette with controlled substances homicide,
the information needed to include the identity of the controlled substance-
methadone-or at least the schedule under which methadone falls, Schedule II.
Instead, the information alleged that Zillyette "unlawfully deliver[ ed] a controlled
substance . . . in violation of RCW 69.50.401 . . . CONTRARY TO RCW
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State v. Zillyette, No. 87614-2
69.50.415 and against the peace and dignity of the State of Washington." CP at 1.
The information merely set forth the language of RCW 69.50.415(1) and failed to
allege the facts necessary to charge a person with controlled substances homicide.
Nothing on the face of Zillyette's information can be construed to imply that
methadone was the controlled substance that caused Burrows' death. Not even the
most liberal reading of this information can cure its defects.
Because the State cannot satisfy the first prong of the Kjorsvik liberal
construction test, we presume prejudice and reverse without deciding whether
Zillyette was prejudiced.
CONCLUSION
Identification of the controlled substance, or, alternatively, specification of
the RCW 69.50.401(2) subsection ((a), (b), or (c)) or the schedule of the controlled
substance, is an essential element of controlled substances homicide. An
information alleging simply that a person delivered a controlled substance that
caused a user's death is over inclusive. It could possibly charge both criminal and
noncriminal behavior because not every kind of controlled substance can be the
basis for controlled substances homicide. On its face, the information charging
Zillyette with controlled substances homicide failed to identify methadone as the
controlled substance that caused Burrows' death. The information also failed to
specify that the controlled substance that killed Burrows fell into RCW
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State v. Zillyette, No. 87614-2
69.50.401(2)(a) or Schedule II. Not even a liberal interpretation can cure
Zillyette's information of its defects. Therefore, we reverse the Court of Appeals,
vacate Zillyette's conviction for controlled substances homicide, and dismiss the
charge without prejudice.
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State v. Zillyette, No. 87614-2
WE CONCUR:
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