Opinion
No. 35821-2-II.
August 19, 2008.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 05-1-01583-4, James E. Warme, J., entered January 9, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Penoyar, J.
Joshua Frank Lee Harvill appeals his conviction for unlawful delivery of cocaine. He argues that the trial court erred when it failed to instruct the jury on the affirmative defense of duress. Because any potential error in failing to instruct the jury on a duress defense was harmless beyond a reasonable doubt, we affirm.
FACTS I. Arrest, Charges, and Plea
On April 18, 2005, officers from the Cowlitz-Whakiakum Narcotics Task Force engaged in a controlled drug-buy operation using an informant, Michael Nolte. After Nolte successfully purchased cocaine from Harvill, the State charged Harvill with unlawful delivery of cocaine. Harvill pleaded not guilty and the case went to a jury trial. At trial, Harvill did not deny delivering the cocaine to Nolte; instead, he asserted duress and entrapment defenses.
II. Trial A. State's Evidence
At trial, Detective Darren Ullmann, a member of the drug task force, testified that Nolte (1) was an informant under contract with the task force; (2) provided task force officers with a list of individuals that were potential targets; and (3) then, under Ullmann's supervision, attempted to call the people on the list. On April 18, the first person on the list to answer was Harvill. As instructed by the officers, Nolte asked Harvill to sell him a half ounce of cocaine. Ullmann, who was present throughout this conversation, heard Harvill tell Nolte that he was at Chuck E. Cheese and was unable to get away at that time; Ullmann did not hear Nolte make any threats during the conversation.
Both Nolte and Ullmann testified at trial that Nolte had agreed to act as an informant in exchange for favorable treatment following his arrest on felony drug charges.
Ullmann stated that after about 20 to 25 minutes, he directed Nolte to call Harvill again. During that conversation, Harvill told Nolte he (Harvill) would have to call him (Nolte) back. Harvill called back a few minutes later and told Nolte that he could meet him.
The officers searched Nolte and Nolte's vehicle and found no drugs, money, or other contraband. They then had Nolte call Harvill back to find out where he wanted to meet. Harvill told Nolte to meet him at a local Fred Meyer parking lot. The officers gave Nolte the buy money and followed him as he drove to the designated meeting spot. Nolte did not stop or contact anyone until he reached the parking lot.
Ullmann testified that, on the way to the meeting location, Nolte called him and told him that Harvill had called to say he would be unable to deliver the full amount of the drugs Nolte had requested. Ullmann told Nolte to continue with the buy. Once Nolte arrived at the designated location, Sergeant Kevin Tate took over observing the operation.
Tate testified that after Nolte contacted Harvill, he (Tate) had located Harvill at the Chuck E. Cheese and followed him as he got into his car and left the area, made two brief stops, and then drove to the Fred Meyer parking lot. Tate watched as Harvill got out of his car, waited for Nolte, got into Nolte's car, exited Nolte's car, went inside the store, and then returned to his own car.
Ullmann testified that when the transaction was complete, Nolte left the Fred Meyer parking lot and they met at a predetermined location. Nolte handed Ullmann a small bag of "chunky white stuff," which later tested positive for cocaine. Nolte told Ullmann that when Harvill arrived, he (Harvill) had gotten into Nolte's car on the passenger side and tossed the bag into Nolte's lap. Nolte then gave Harvill the buy money. And Harvill apologized for the bag's being "short."
After Nolte turned the drugs over to the officers, they searched him again and did not find any other drugs, money, or other contraband. Nolte ultimately made nine or ten buys from the people on the list of approximately 15 to 20 people whose names he had provided to the officers.
Nolte's testimony about the April 18 transaction was consistent with the officers' testimony. Nolte testified that he (Nolte) had (1) suggested Harvill might be someone from whom he could purchase drugs, (2) initiated this particular drug transaction at the officers' behest, (3) known Harvill for seven or eight years, (4) at no time during his contact with Harvill threatened to harm him, and (5) never injured or been in a fight with Harvill. Nolte did admit, however, to having been in "a little wresting match" with Harvill's younger brother several years earlier when he (Nolte) was about 16; but Nolte asserted, that there had been no injuries.
Nolte also (1) testified that he had agreed to act as an informant after he was charged with several felony drug charges; and (2) admitted early on that he had sold some of his personal prescription medications during one of the drug buy operations in an attempt to avoid being discovered as an informant.
Nolte further testified that he worked at a local mill with Harvill, that they worked on opposite sides of the mill, that he did not have regular contact with Harvill, and that he was not in any kind of supervisory position over Harvill. Moreover, Nolte had never threatened to take any work-related action against Harvill if Harvill did not provide him with drugs. Nolte asserted that he rarely talked to Harvill and that when he did, Harvill did not seem afraid of him.
On cross examination, Nolte admitted he had a prior second degree assault conviction based on an incident in which he had struck someone with a beer bottle. He also testified that he is about five foot ten inches tall and weighed about 200 pounds.
B. Defense Evidence 1. Duress
Harvill testified as the sole defense witness. He admitted that he had met with Nolte and sold him drugs on April 18, but he denied ever having provided Nolte with cocaine before the delivery at issue here. He asserted that he met with Nolte and supplied drugs to Nolte this time only because he was afraid Nolte would harm him or his family or retaliate against him at work if he did not provide Nolte with cocaine. Harvill did not, however, testify about any direct threat against him or his family.
Harvill testified that (1) Nolte had called him several times between April 16 and 18, asking Harvill to procure drugs for him; (2) he (Harvill) knew Nolte through his younger brother, whose arm Nolte had nearly broken while they were wrestling around; (3) he (Harvill) knew that Nolte had gone to prison for assaulting someone with a beer bottle and causing serious injury; (4) he had heard Nolte talking about grabbing a gun from someone who was threatening him and then cutting that person with a knife; (5) Nolte was aggressive, pushy, and bullying at work; (6) they had frequent contact at work; and (7) Nolte took steroids. Harvill asserted that all of these factors contributed to his fear that Nolte would harm him or his family or retaliate against him at work if he did not comply with Nolte's request for drugs.
2. Entrapment
As for Nolte's request for drugs, Harvill testified that (1) Nolte had called nine or ten times between April 16 and 18, asking him repeatedly to get him "something"; (2) on April 18, Nolte had called him two times before they eventually met at Chuck E. Cheese's; (3) when he (Harvill) had spoken to Nolte, Nolte had said things like, "You gotta get me something," "I need it," "You better get me some cocaine," or "You need to get me some cocaine"; (4) Harvill interpreted these requests as threats; but (5) he could not recall whether Nolte had said he (Harvill) needed to get him the cocaine, "`or else.'" Harvill also testified that he was about five feet five inches tall and weighed about 145 pounds.
C. Rebuttal
The State recalled Nolte to rebut Harvill's testimony. Nolte denied having taken work breaks with Harvill or ever having threatened to harm him physically or through work. Nolte also explained that he had once grabbed a gun from a man who had threatened him and a carload of others, including Harvill's brother, at a high school graduation party and that he had cut the man with a knife in self defense. Nolte stated that although the State had brought charges related to this incident, the charges were eventually dismissed because he had acted in self defense.
In addition, Nolte testified that he had purchased cocaine from Harvill approximately ten times before April 18, which is why he had included Harvill in the list he provided to the drug task force.
D. Jury Instructions and Verdict
The parties and the trial court discussed whether Harvill was entitled to a jury instruction on his duress defense. The State was reluctant to withhold the instruction, expressing concern that even though the evidence might not support the instruction, the jury might be confused if the trial court did not give the instruction because Harvill had clearly alluded to a duress defense in his opening statement. Nevertheless, the trial court concluded that the evidence did not support the duress defense instruction. Specifically, it stated that it would not give the instruction because there was no evidence that Harvill's fear resulted from threats.
Defense counsel argued that Harvill's testimony — that he subjectively felt threatened — was sufficient to support the duress defense instruction and that it was up to the jury to determine if there was or was not a threat. Reiterating that there was no testimony about any threat, the trial court stated that the duress defense failed as a matter of law; and it denied Harvill's request to give the instruction.
Defense counsel renewed his objection. Although the trial court did not instruct the jury on duress, it instructed the jury on the entrapment defense. The jury rejected the entrapment defense and found Harvill guilty of delivery of cocaine.
We describe this instruction in detail below.
Harvill appeals.
ANALYSIS
Harvill argues that the trial court erred by refusing to instruct the jury on the duress defense. We hold that any such potential error was harmless beyond a reasonable doubt.
I. Standard of Review
Each party "is entitled to have the jury instructed on its theory of the case if there is substantial evidence to support that theory." State v. Williams, 132 Wn.2d 248, 259-60, 937 P.2d 1052 (1997) (citing State v. Hughes, 106 Wn.2d 176, 191, 721 P.2d 902 (1986)). We review a trial court's refusal to give a requested instruction, when based on lack of factual support, for an abuse of discretion; we review the trial court's refusal based on a question of law de novo. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996) (citations omitted), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 544, 947 P.2d 700 (1997).
But "[a]n error in instructions is harmless . . . if it has no effect on the final outcome of the case." State v. Rice, 102 Wn.2d 120, 123, 683 P.2d 199 (1984) (citing State v. Rotunno, 95 Wn.2d 931, 631 P.2d 951 (1981); State v. Caldwell, 94 Wn.2d 614, 618 P.2d 508 (1980)); State v. Hackett, 64 Wn. App. 780, 787, 827 P.2d 1013 (1992) (citations omitted). Here, even assuming, but not deciding, that the trial court erred when it refused to instruct the jury on the duress defense, any such error was clearly harmless.
II. Duress Defense
A defendant may assert duress as a defense to a crime where:
(a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or she or another would be liable to immediate death or immediate grievous bodily injury; and
(b) That such apprehension was reasonable upon the part of the actor; and
(c) That the actor would not have participated in the crime except for the duress involved.
RCW 9A.16.060(1) (emphasis added). Duress is an affirmative defense that the defendant must prove by a preponderance of the evidence. State v. Frost, 160 Wn.2d 765, 773-74, 161 P.3d 361 (2007) (citing State v. Riker, 123 Wn.2d 351, 368-69, 869 P.2d 43 (1994)), cert. denied, 128 S. Ct. 1070 (2008).
Although the trial court did not instruct the jury on the duress defense, it did instruct the jury on the entrapment defense. The entrapment instruction provided:
Entrapment is a defense to a criminal charge if the criminal design originated in the mind of law enforcement officials, or any person acting under their direction, and the defendant was lured or induced to commit a crime which the defendant had not otherwise intended to commit.
The defense is not established if law enforcement did no more than afford the defendant an opportunity to commit a crime. The use of a reasonable amount of persuasion to overcome reluctance does not constitute entrapment.
The burden is on the defendant to prove the defense of entrapment by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all the evidence in the case, that it is more probably true than not true.
Clerk's Papers at 38 (emphasis added). By convicting Harvill, the jury clearly rejected this entrapment defense.
Although the question of whether the criminal design originated with law enforcement is not an element of duress, undisputed evidence clearly established that the drug buy operation here was conceived by and initiated by law enforcement. Thus, to prove entrapment, Harvill had to prove by a preponderance of the evidence and the jury had to find that (1) normally he would not have committed the offense, (2) he had committed the offense only because Nolte's actions induced him, (3) Nolte did more than merely give him an opportunity to commit the offense, and (4) Nolte used more than a "reasonable amount of persuasion to overcome [Harvill's] reluctance" to commit the offense. The jury found that Harvill failed to sustain his burden of proof to show entrapment.
Similarly, to have established duress, Harvill would have had to prove by a preponderance of the evidence that (1) he would not have participated in the offense "except for the duress involved," which is the equivalent of showing that he would not normally have committed the offense; and (2) he had participated in the crime "under compulsion by another" by threat or use of force. This second factor, at a minimum, is the equivalent of showing that Nolte's actions "induced" Harvill to commit the offense, that Nolte did more than merely offer Harvill the opportunity to commit the offense, and that Nolte had exerted more than an reasonable amount of persuasion to overcome Harvill's resistance. Thus, even if the trial court had instructed the jury on the affirmative duress defense, Harvill would have failed to sustain his burden of proof to show duress.
In sum, the entrapment defense either contained elements that were established without question or required a lesser burden of proof than his proposed duress defense. Given the jury's conclusion that the evidence was insufficient to establish the less burdensome entrapment defense, we can say beyond a reasonable doubt that the outcome of the trial would not have been any different had the trial court instructed the jury on the duress defense. Accordingly, we hold that any potential error in the trial court's refusal to give a duress defense instruction was clearly harmless beyond a reasonable doubt.
We affirm.
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.
VAN DEREN, C.J. and PENOYAR, J., concur.