State v. Jones

545 P.2d 1210, 14 Wash. App. 876, 1976 Wash. App. LEXIS 1942
CourtCourt of Appeals of Washington
DecidedFebruary 4, 1976
DocketNos. 1503-3; 1566-3
StatusPublished
Cited by2 cases

This text of 545 P.2d 1210 (State v. Jones) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Jones, 545 P.2d 1210, 14 Wash. App. 876, 1976 Wash. App. LEXIS 1942 (Wash. Ct. App. 1976).

Opinion

Green, J.

Defendants, Michael A. Jones and James Edward Jones, appeal from their convictions of conspiracy to violate the Uniform Controlled Substances Act, RCW 69.50.407.

Errors are assigned to (1) the giving of instruction No. 11; and (2) the admission of certain testimony.

First, defendants contend it was error to give the italicized portion of instruction No. 11;

[877]*877Conspiracy is a crime which requires criminal intent on the part of the conspirators. The specific intent required to he shown in this case is the intent to sell or deliver marijuana, amphetamines or lysergic acid diethyl-amide.
The intent with which an act is done is a mental process and is rarely, if ever, susceptible of proof by direct evidence, but may be inferred or gathered from the outward manifestation, by the words or acts of the person entertaining it, and the facts or circumstances surrounding or attendant upon the offense with which he is charged.

(Italics ours.) They argue that the court should have instructed that in order to find a conspiracy, the jury must find an intent “to conspire or enter into an agreement or join in concert to sell controlled substances.” Assuming, but not deciding, the validity of defendants’ contention, we find no error.

In determining whether the trial court erred in the giving of instruction No. 11, the instructions must be considered as a whole. As the court said in State v. Jamerson, 74 Wn.2d 146, 148, 443 P.2d 654 (1968):

Each instruction must be considered in light of all other instructions given, and it is presumed that a jury reads and follows the court’s instructions as a composite whole.

In this case, we consider instruction No. 11 in light of all the instructions, including:

Instruction No. 10
Conspiracy to sell or to deliver a controlled substance is a crime separate, distinct from and unincluded in the crimes of possession or sale or delivery of a controlled substance.
The defendants are not here charged with either possession or delivery or sale of a controlled substance.
Instruction No. 12
A conspiracy is a combination of two or more persons, by concerted action, to commit a criminal act.
Mere similarity of conduct among various persons, and the fact they may have associated with each other, and may have assembled together and discussed common [878]*878aims and interests, does not necessarily establish proof of the existence of a conspiracy.
. . . What the evidence in the case must show beyond a reasonable doubt, in order to establish proof that a conspiracy existed, is that the members in some way or manner, or through some contrivance, positively or tacitly came to a mutual understanding to try to accomplish a common and unlawful plan.
Instruction No. 15
If you find that each defendant conspired to sell or to deliver any controlled substance, you shall find them guilty of the offenses as charged.
Instruction No. 16
It is not necessary that the conspirators succeed in accomplishing their common object or purpose and in fact may have failed of doing so . . .
Instruction No. 17
Proof of a general plan or scheme to bring about illegal results may justify an inference of conspiracy . . .

(Italics ours.) No error having been assigned to these instructions, they become the law of the case. State v. Mott, 74 Wn.2d 804, 805, 447 P.2d 85 (1968). We find that the instructions taken as a whole meet defendants’ objection, i.e., that the jury was required to find an intent to conspire or enter into an agreement to commit an illegal act.

The second error is assigned to the admission of an undercover agent’s testimony concerning statements made by each defendant that incriminated the other in a joint trial. It is claimed that each defendant was denied the opportunity to confront and cross-examine the other defendant in violation of the rule of Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968).1 We disagree.

The claimed objectional testimony by the undercover agent is set out in defendants’ brief as follows:

A. The conversation that transpired on that evening, James Jones told Michael Jones that they could buy [879]*879dope in Spokane at a reasonable rate, because of the accessibility of the dope that they could buy in Spokane, he said they could buy two jars of speed, a pound of marijuana, and about a hundred hits of acid and bring it back to the Grand Coulee-Coulee Dam area and sell it in this area.
Q. Now, who made that statement?
A. James made this to Michael. Michael said that would be good because the people in this area that we deliver to can front the money to another person by the name of Billy Nelson.
A. Michael said that Billy Nelson could front the money from the people in that area. James then stated to Michael to go ahead and contact Billy Nelson and get the money from him that night because he wanted to go back to Spokane. Well, Michael then stated to James that he already had made arrangements to meet Billy Nelson in a few minutes. And he said, “Okay, go ahead and do it.” And a few minutes after that he did leave.

The agent testified that he followed Michael part of the way in the direction of Mr. Nelson’s residence. He stated that the next day he went to defendants’ residence:

A. When I got out of the vehicle Michael Jones approached me and asked me if I wanted a marijuana joint, and I said, “I will take a couple off of your hands if you can spare them.” At which time we were close enough where James Jones could hear the conversation. James Jones approached us, they both took out their own baggies of marijuana and rolled marijuana joints out of each person’s stash, they lit them up and started to smoke them. At which time then James. Jones started bragging about the $350 that they made from the dope delivery that they delivered to Billy Nelson on the outside of town earlier that day.
Q. . . . Now, after receiving these two marijuana joints what took place at the Jones’ residence?
A. . . . Michael Jones stated to James Jones that Hank Happen had contacted him earlier. James then turned to Michael and asked him what he wanted. Michael then stated to James Jones that Hank Hap[880]*880pen wanted five dimes of speed and some acid if he could get it.
A. Michael Jones stated that Hank Happen did contact him and he did want this.

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Bluebook (online)
545 P.2d 1210, 14 Wash. App. 876, 1976 Wash. App. LEXIS 1942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-jones-washctapp-1976.