State v. WilsonState v. Wilson
- Reporters:
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- Before:
- Thompson
Flеetwood Wilson appeals his conviction of one count of delivery of a controlled substance,
On the evening of January 31, 1984, Yakima city police officer Marva Barnes was working on an undercover prostitution detail. At approximately 10:30 p.m. she encountered Fleetwood Wilson. She testified he parked his car at the curb, rolled down the window and offered her a marijuana cigarette. Officer Barnes testified she accepted the marijuana and walked around thе corner, signaling for her backup team who thereafter arrested Mr. Wilson. At trial, Mr. Wilson denied being in possession of any marijuana. He wаs convicted of delivering a controlled substance,
Mr. Wilson contends the trial court erred in refusing to give his requested instruction on the lesser included offense of possession. We agree. A misdemeanor
First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.
(Citations omitted.) Workman, at 447-48.
The Stаte admits the first prong of the test is satisfied, but argues the lesser crime is not supported by evidence in this case because Mr. Wilson totally denied possession of the marijuana. Where such a denial is present, courts have, in certain circumstances, concludеd the evidence will not support giving the lesser crime instruction. Under this analysis the defendant is held to be guilty of the greater crime, or none at all. See, e.g., State v. Haynes, 71 Wn.2d 136, 142, 426 P.2d 851 (1967); State v. Snider, 70 Wn.2d 326, 327, 422 P.2d 816 (1967); State v. Cozza, 19 Wn. App. 623, 626, 576 P.2d 1336 (1978).
However,
it is not incumbent upon the defendant, before such an instruction will be given, to show facts from which a jury might draw the conclusion that the lesser crime and not the greater was, in fact, committed; . . .
State v. Gottstein, 111 Wash. 600, 602, 191 P. 766 (1920).
In order to establish “delivery“, the State was required to prove the “actual, constructive, or attempted transfer from one person to another of a controlled substance, ...”
Pro se Mr. Wilson contends (1) the information charged only possession; (2) trial counsel failed to bring this to the court‘s attention; (3) he was only allowed to disqualify two jurors based on the court‘s desire to go on with the trial; (4) the state prosecution should have been stayed based on the prior federal conviction which was pending appeal; (5) excess media coverage prejudiced his case; and (6) the Interstate Agreement on Detainers Act, 18 U.S.C. app. § 2, at 545 (1982) was violated, thereby rendering state jurisdiction invalid.
Because of оur prior holding, resolution of the first five pro se issues is unnecessary; however, we note the information expressly charges delivery.
By personal restraint petition Mr. Wilson reiterates his final pro se claim the state court lacked jurisdiction over him. Mr. Wilson asserts that he was arrested on a state charge during the time in which he was released pending sentencing on a prior federal convictiоn. He states he was subsequently released from pretrial detention in the Yakima County Jail to appear in federal court wherе he was given a 3-year federal sentence. His state trial then proceeded after which a judgment and a 5-year sentence were imposed to run “consecutively with defendant‘s federal commitment“. In essence, he asks us to invalidate state court jurisdictiоn based on absence of a detainer or a writ of habeas corpus releasing him from federal custody. Under the facts of this case, neither was necessary.
The Interstate Agreement on Detainers Act, 18 U.S.C. app. § 2, at 545, codified as
Although a writ of habeas corpus ad prosequendum is commоnly issued to obtain a prisoner from federal authorities, Smith v. Hooey, 393 U.S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575 (1969), the record contains no evidence such a writ was filed in this instance. In faсt, no evidence of any communication between the state and federal authorities is in the record. Nevertheless, a cоurt has exclusive personal jurisdiction over any party who appears before it, regardless of how that appearance was effected. United States v. Warren, 610 F.2d 680, 684 n.8 (9th Cir. 1980); see also Ponzi v. Fessenden, 258 U.S. 254, 66 L. Ed. 607, 42 S. Ct. 309, 22 A.L.R. 879 (1922); Stamphill v. Johnston, 136 F.2d 291, 292-93 (9th Cir.), cert. denied, 320 U.S. 766, 88 L. Ed. 457, 64 S. Ct. 70 (1943). Moreover, the decision to allow the state authorities to try a federal prisoner belongs to thе federal government and a transfer from federal to state authorities is presumed authorized absent a showing to the contrary. In re Harris, 38 Wn. App. 684, 686, 689 P.2d 95 (1984).
Given the fact Mr. Wilson was returned to the custody of state authorities for prosecution after the federal sentence was impоsed, Mr. Wilson has not made a showing the federal government did not consent to his transfer. As was the case in Stamphill, at 292:
the arrangement made betwеen the two sovereigns, the state and federal governments, does not concern the defendant who has violated the laws of еach sovereignty and he cannot in his own right demand priority for the judgment of either.
We therefore dismiss the personal restraint petition but reverse and remand for a new trial consistent with this opinion.
McInturff, A.C.J., and Munson, J., concur.
Reconsideration denied September 17, 1985.
Review denied by Supreme Court December 18, 1985.
Notes
“Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver, a controlled substance.”