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Prosecutor may re-try Elma homicide thrown out by court

MONTESANO —Prosecutor Stew Menefee says he’s considering re-trying the case of an Elma woman, who was originally convicted in the death of a teen from Elma more than three years ago.

On August, 1, the state Supreme Court dismissed charges against Brenda Zillyette, who was serving a 55-month sentence for controlled substances homicide for providing the drugs that caused the death of 18-year-old Austin Burrows, also of Elma. She was sentenced in March of 2010 and began serving her jail sentence immediately.

The state Supreme Court ruled that the original charging documents filed against Zillyette “did not identify the controlled substance that Zillyette allegedly delivered to Burrows that resulted in Burrows’ death.” The court ordered that Zillyette be released and the charges dismissed.

“The trial court convicted Zillyette of the crime charged, and the Court of Appeals affirmed,” State Supreme Court Justice Mary Fairhurst wrote in the unanimous opinion. “We reverse because the information failed to set forth all of the essential elements of the crime of controlled substances homicide.”

Menefee said the ruling by the state Supreme Court still allows him to re-file the paperwork the precise way that the high court is demanding.

“At this point, I need to take a look at the case again,” Menefee said. “It’s been a few years so we need to take a look to make sure we still have the evidence, that we still have everything we need to move forward.”

Menefee said he would also want to touch base with Burrows’ family and get their input on the situation before making a final decision. Menefee said he’s not sure how much time Zillyette would have left to serve after accounting for “good time” deductions.

“That will also play a factor in our decision,” Menefee said.

The Daily World reported Tuesday that Zillyette had already finished her sentence.

Grays Harbor Superior Court Judge Gordon Godfrey had found Zillyette guilty of the homicide in a bench trial.

“She had the drugs. She delivered (them to Burrows),” Godfrey said in announcing his decision back in 2010. “He’s dead. And the death is the result … of toxic levels of methadone. Guilty. It’s not even beyond a reasonable doubt. There’s no doubt.”

Burrows died on April 1, 2009. He had taken the drugs the night before and died in bed, where his family found him. Zillyette and Burrows had snorted the pills together after she had retrieved them from a pharmacy.

Menefee had made the rare decision of filing the homicide charges against Zillyette based on the facts in the case.

“Burrows died after ingesting large quantities of two prescription drugs — Xanax and methadone,” Fairhurst wrote in the ruling.

“After investigators discovered that Burrows had received the drugs from Zillyette, the State charged Zillyette with controlled substances homicide.”

Chief Criminal Deputy Prosecutor Gerry Fuller noted that the state had a confession from Zillyette on file.

“There’s a reason it was a bench trial,” Fuller said. “The case was pretty clear cut. This was just overturned on a technical glitch.”

Attorneys for Zillyette had argued that the conviction “was invalid” because the original charging documents “did not identify what controlled substance caused Burrows’ death.”

The Appeals Court originally upheld the verdict. However, the state Supreme Court overruled the Appeals Court.

“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,” the ruling states. “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.”

The Supreme Court ruling notes that Burrows had taken both methadone and Xanax the night prior to his death. Methadone can be used in a controlled substance homicide, under the state law. However, Xanax “cannot be the basis for controlled substances homicide,” according to state law, the ruling notes. That’s why the charging documents should have clearly stated that Zillyette was being charged for delivering the methadone.

“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,” the ruling states.

“On its face, the information charging Zillyette with controlled substances homicide failed to identify methadone as the controlled substance that caused Burrows’ death,” the ruling states.

Menefee noted that it’s pretty typical in charging documents to refer to other documents and the Revised Code of Washington rather than print every nitty gritty detail.

“I’m really hoping that they aren’t setting up a new standard here,” Menefee said. “When someone burglarizes a house, we don’t say what they hoped to steal, for instance. We just know they were trying to get in the house.”

Read the full opinion here: http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=876142MAJ

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