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THE COURT OF APPEALS OF THE STATE OF ALASKA
JAMES GORDON MARION, )
)
Appellant, ) Court of Appeals No. A-2826
) Trial Court No. 3AN-S88-1477CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1109 - March 1, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Mark C. Rowland, Judge.
Appearances: Leslie A. Hiebert, Assistant
Public Advocate, and Brant McGee, Public
Advocate, Anchorage, for Appellant. Valerie
A. VanBrocklin, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Douglas B. Baily, Attorney
General, Juneau, for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, District Court Judge.*
BRYNER, Chief Judge.
James Gordon Marion was convicted by a jury of
possessing cocaine (misconduct involving a controlled substance
in the fourth degree). On appeal, he challenges the sufficiency
of the evidence before the grand jury and at trial. We reverse.
On March 9, 1988, shortly after midnight, Anchorage
Police Sergeant Ed Hofkins pulled a car over for running a red
light. The stopped car was driven by Robert Baker; James Marion
sat in the front passenger's seat. When Hofkins saw two men in
the car, he called for a back-up officer. Hofkins then
approached the driver's side of the stopped car and asked Baker
to identify himself and produce his driver's license.
Baker gave Hofkins a false name and told the officer
that he did not have his license with him. As Hofkins radioed
for a computer check on the name Baker had given him, he noticed
an open gun box in the front seat between Baker and Marion. The
box contained some cartridges but no gun. Baker initially
claimed that the box was from a toy gun; he then said he did not
know where the gun was. Meanwhile, Hofkins received word from
his dispatcher that the police had no record of a licensed driver
with the name that Baker had given.
As he questioned Baker further, Hofkins noticed Marion
place his hand into his jacket pocket, withdraw it, and reach
under his seat. Hofkins told Marion to keep his hands in view.
Marion replied that he was just looking for a cigarette. A short
time later, Marion again reached under the seat. Hofkins
repeated his command for Marion to keep his hands in view.
Officer Eddie Campoamor soon arrived to provide Hofkins
with back-up. At Hofkins' request, Campoamor approached the
passenger's side of the car. Hofkins told Campoamor to be
careful, because there was an empty gun box on the seat, and
because Marion had "fidgeted with something at his feet. I don't
know what's there."
Campoamor directed Marion to step out of the car.
Marion complied. After performing a pat-down, Campoamor asked
Marion to identify himself. Marion stated his name and provided
Campoamor with a valid driver's license.
While Campoamor dealt with Marion, Hofkins removed
Baker from the driver's side and inspected the area of the car in
which Baker had been seated. On the floorboard of the driver's
side, immediately beneath the brake and gas pedals, Hofkins found
a .22 caliber pistol and a syringe. Campoamor then inspected the
passenger's side of the car. Under the front edge of the
passenger's seat, Campoamor found an eyeglass case. Underneath,
concealed by the case, was a .22 caliber derringer. Opening the
eyeglass case, Campoamor discovered a syringe and three packets
containing a white powdered substance. A field test indicated
that the substance was cocaine.
The state subsequently indicted Marion for possessing
the cocaine found in the eyeglass case.1 Hofkins did not appear
before the grand jury; Campoamor was the only officer who
testified. Campoamor described seizing the derringer and
eyeglass case and inspecting the contents of the case. Campoamor
also testified that Hofkins had told him about seeing Marion
reach furtively under the passenger's seat. However, because
Hofkins was not present to testify, the prosecutor cautioned the
grand jury to consider this testimony only for the purpose of
explaining Campoamor's subsequent actions:
Q.Okay. And very briefly, and I'm gonna
elicit one remark from Hofkins through Mr.
Campoamor. The reason I'm doing that is I'm
not introducing it to prove that it was true
or not, but I'm introducing it to show you
why Mr. Campoamor did what he did. I.e., why
he went under that seat in addition to this
reason. What additional comment did Mr. --
Sergeant Hofkins make to you that made you
very careful to look under the seat?
A.The passenger seat, I was advised that he
had observed the passenger to be placing his
hand toward the front bottom of the seat as
if he was putting something underneath.
Campoamor went on to testify that laboratory testing
had confirmed the powder in the eyeglass case to be cocaine. He
further testified that examination of the derringer by police
technicians had disclosed no identifiable fingerprints.
The state called one other witness before the grand
jury. Sharon Zeller testified that she owned the stopped car and
was a long-time friend of Robert Baker. Zeller said she had
loaned Baker her car the day before the stop. Zeller also
claimed that the pistol found on the driver's side of the car,
under Baker's feet, was a gun that she was buying from her aunt.
According to Zeller, Baker had agreed to pick up the gun from her
aunt and bring it to her. Zeller denied ever having seen the
derringer that was found under the passenger's seat, and said she
had no idea what it was doing in her car. She also said she had
no idea how long Marion had been in the car with Baker, did not
know if Marion and Baker were friends, and, in fact, did not even
know who Marion was.
Prior to trial, Marion moved to dismiss his indictment,
alleging, among other things, that the evidence before the grand
jury was insufficient to establish his knowing possession of the
cocaine in the concealed eyeglass case. The superior court
denied Marion's motion. Marion renews his claim on appeal.
In considering the sufficiency of the evidence before
the grand jury, we begin with the standard of proof spelled out
in Alaska Criminal Rule 6(q): "The grand jury shall find an
indictment when all the evidence taken together, if unexplained
or uncontradicted, would warrant a conviction of the defendant."
Our task is to determine whether the evidence before the grand
jury in Marion's case "presented a sufficiently detailed account
of criminal activity and the defendant's participation in this
activity" to meet this standard. Taggard v. State, 500 P.2d 238,
242 (Alaska 1972).
Although Criminal Rule 6(q) demands that the
sufficiency of the evidence be determined from "all of the
evidence taken together," we may not consider evidence that was
improperly presented to the grand jury. Under Criminal Rule
6(r), the grand jury may generally hear only "[e]vidence which
would be legally admissible at trial;" in the absence of
compelling justification, hearsay evidence is expressly
forbidden. Id.
By far the most convincing grand jury evidence of
Marion's knowing possession of cocaine was Campoamor's testimony
concerning Marion's furtive movements toward the area under his
seat, where the derringer and cocaine were found. This
testimony, however, was based on information observed by Hofkins.
Recognizing that Hofkins' statements to Campoamor would be
inadmissible hearsay if relied on to establish that Marion
actually made furtive movements, the prosecutor expressly
cautioned the grand jury to rely on this evidence for the limited
purpose of explaining Campoamor's actions. On appeal, the state
acknowledges the limited admissibility of the evidence and
concedes that it cannot be considered to establish that Marion
made furtive movements.
When Campoamor's testimony concerning Marion's furtive
movements is considered solely for its non-hearsay purpose, the
remaining grand jury evidence appears to show little more than
Marion's proximity to the derringer and eyeglass case that were
hidden under his seat. It is well settled that evidence of
proximity to contraband cannot in itself establish knowing
possession. See, e.g., United States v. Behanna, 814 F.2d 1318,
1319 (9th Cir. 1987); United States v. Soto, 779 F.2d 558, 560
(9th Cir. 1986); United States v. Weaver, 594 F.2d 1272, 1275
(9th Cir. 1979); State v. Plank, 731 P.2d 1170, 1172 (Wash. App.
1987). Such evidence may nevertheless be combined with other
circumstantial evidence to support an inference of knowing
possession. See, e.g., State v. Mathews, 484 P.2d 942, 943
(Wash. App. 1971).
In Marion's case, however, the grand jury heard
virtually no evidence of a nexus between Marion and the articles
concealed under his seat apart from the location of those
articles within Marion's proximity. No evidence was presented
indicating the origin, ownership, or registration of the
derringer. The record is equally silent as to the origin and
ownership of the eyeglass case. The grand jury was not even
apprised whether Marion wore eyeglasses when he was arrested.
Marion was not shown to be in possession of or involved with
other drugs or firearms at or near the time of this incident.
Other than his furtive gestures toward the area under the seat,
Marion apparently engaged in no suspicious conduct during the
traffic stop, and he evidently gave no statements tending to
incriminate himself.
While the testimony of the car's owner, Sharon Zeller,
established that the derringer and eyeglass case were not hers,
her disclaimer of ownership gives rise to no inference of
knowledge on Marion's part. Zeller's car had been out of her
possession since the day before the stop. Moreover, since Zeller
testified that she had no idea how or when the derringer and
eyeglass case came to be in her car, there is nothing to
establish that those articles were not already in the car when
she loaned it to Baker. The circumstances surrounding Marion's
presence in the car are as obscure as the circumstances
surrounding the presence of the eyeglass case and the derringer.
Zeller was unacquainted with Marion, did not know how long he had
been in her car with Baker, and had no idea why he was there.
Despite the paucity of evidence, the state argues that
Marion's knowledge and ownership of the articles concealed
beneath his seat can be deduced from the fact that another gun
and a syringe were found on the driver's side of the car under
Baker's feet. Zeller's testimony linked those articles to Baker.
The state maintains that, from this, it would be reasonable to
infer that the gun and drugs hidden on the passenger side of the
car belonged to Marion. The flaw in the state's argument,
however, is its intrinsic circularity: the reasonableness of the
inference that Marion owned the derringer and drugs under his
seat depends entirely on the threshold assumption that Marion and
Baker both had drugs and guns before they were stopped -- an
assumption which, as to Marion, is wholly unsupported by evidence
apart from the location of the drugs and derringer under his
seat.
Under circumstances similar to those of the present
case, the Alaska Supreme Court has held that a defendant's mere
presence in a car containing drugs is insufficient to establish a
prima facie case of knowing possession. See Egner v. State, 495
P.2d 1272 (Alaska 1972). In our view, Egner compels the
conclusion that the evidence presented to the grand jury against
Marion would not have warranted his conviction at trial. We thus
hold that the superior court erred in denying Marion's motion to
dismiss the indictment.2
The conviction is REVERSED.
_______________________________
*Entered pursuant to Appellate Rule 214 and Guidelines
for Publication of Court of Appeals Decisions (Court of Appeals
Order No. 3).
1. Based on the derringer found under his seat,
Marion, who had a prior conviction, was also indicted for being a
felon in possession of a concealable firearm (misconduct
involving a weapon in the first degree). Marion was tried
separately on the charge, and it was ultimately dismissed after a
jury failed to reach a unanimous verdict.
2. Our reversal on this ground makes it necessary to
consider only one of the other issues that Marion has raised on
appeal. Marion has challenged the sufficiency of the evidence at
his trial. We must address this issue because retrial would be
impermissible if the state failed to present sufficient evidence
at Marion's first trial. Having reviewed the record, we find
that the state presented sufficient evidence of guilt at trial.
In contrast to the grand jury hearing, Officer Hofkins testified
at trial and personally described Marion's furtive movements
toward the area under his seat. Considering this testimony and
other evidence in the light most favorable to the state, we are
satisfied that fair-minded persons exercising reasonable judgment
could have concluded that the state met its burden of proving
guilt beyond a reasonable doubt. Dorman v. State, 622 P.2d 448,
453 (Alaska 1981). Accordingly, the trial court did not err in
denying Marion's motion for a judgment of acquittal.
