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THE COURT OF APPEALS OF THE STATE OF ALASKA
PEDRO CASTILLO, )
) Court of Appeals No. A-3429
Appellant, ) Trial Court No. 3AN-S89-5207CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1175 - November 15, 1991]
Appellee. )
)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Nancy R. Simel, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
COATS, Judge.
Pedro Castillo was convicted, following a jury trial,
of misconduct involving a controlled substance in the third
degree, a class B felony. AS 11.71.030(a)(1). Castillo appeals,
raising several issues. We reverse Castillo's conviction.
In October 1988 Dora Sosa met with Vittorio Badoino and
Pedro Castillo in her home. Dora Sosa testified at trial that
while Castillo waited in the living room, she went into the
kitchen with Badoino. Dora Sosa attested that Badoino offered to
pay $200 in exchange for each package she would receive for him.
In a prior statement to the police, however, she stated that
Castillo had asked her to receive the packages.
Dora Sosa received six packages from New York or New
Jersey between October 1988 and July 1989. She testified that as
far as she knew, Castillo sent these packages. Before a package
would arrive, Mercedes Sosa, Castillo's girlfriend and Dora
Sosa's cousin, would call Dora to tell her to expect a package.
Dora thought that Castillo called Mercedes to tell her a package
was coming. Two of the packages were sent to Dora Sosa's
residence; Badoino would wait outside until the mail arrived,
then would pick up the package from Dora Sosa and pay her $200.
Four packages were sent to Dora Sosa's place of employment,
Electrical Distributors Incorporated (EDI). After a package
arrived at EDI, Dora would call Mercedes or Badoino and one of
them would drive to the parking lot behind EDI and pick up the
package.
Wes Stoecker, Dora Sosa's boss and the president of
EDI, noticed that a number of packages had come to EDI addressed
to Dora Sosa personally. He also noticed that after each package
arrived, she would make a phone call and the unopened package
would be picked up in the parking lot. Stoecker suspected that
the packages contained drugs, and called the police to report his
suspicions. He met with Officer Wilbur Hooks, and they agreed
that Stoecker would intercept the next package to arrive.
On July 28, 1989, Stoecker intercepted a package sent
to EDI from New York, addressed to Dora Sosa. Stoecker brought
the package to the police station, where it was subjected to a
canine sniff. The dog alerted, indicating that the package
contained drugs.
Stoecker, Hooks, and two state troopers confronted Dora
Sosa in Stoecker's office. Dora Sosa acknowledged that the
package was hers and said she had ordered some glassware from New
York. She agreed to open the package. The package contained a
set of pots; inside the largest of the pots was a kilogram of
cocaine. After speaking privately with Stoecker, Dora Sosa
agreed to cooperate with the police.
On July 29, Dora Sosa gave Hooks a statement concerning
the source of the cocaine and what she did with the packages
after receiving them. She stated that the drugs were sent from
New York, by Castillo, and that he often came to Alaska shortly
after the drugs arrived. At trial she testified that she had
agreed to cooperate and to give her statement because the police
told her that otherwise she could spend twenty years in jail.
The police obtained a warrant authorizing the electronic
monitoring and recording of conversations between Dora Sosa,
Mercedes Sosa, Vittorio Badoino, and Pedro Castillo.
Over the next few days, the police attempted to have
Dora Sosa deliver the package to Badoino. The original plan was
for Dora Sosa to contact Mercedes Sosa, and have Mercedes send
Badoino to pick up the package. Badoino and Castillo were in New
York, and did not return to Anchorage until late on July 30.
On August 1, Mercedes Sosa told Dora to deliver the
package to a cousin, Angela Sotos, on Sixth Avenue, where Badoino
would pick it up. Neither Badoino nor Castillo were present at
the residence when Dora Sosa arrived; the police had instructed
her not to deliver the package, or take it out of her car, if
those two individuals were not present.
Dora Sosa spoke to Mercedes and Castillo later that
evening. Castillo told Dora to bring the package over to
Mercedes' apartment, and Badoino would later pick it up.
Mercedes said she did not want the package in her home, and told
Dora to leave the package in a closet outside the apartment. The
police did not want the package left in the closet, because
someone could remove it without being seen. By arrangement, as
Dora Sosa was driving to Mercedes' apartment, she was pulled over
by a marked police car for having expired registration tags.
Dora Sosa then drove away without leaving the package in the
closet.
Dora Sosa then called Mercedes' residence from the
Royal Fork Restaurant, and spoke with Castillo. Castillo told
her that "we" would come and get the package from her. Mercedes
came to the parking lot and told Dora to follow her to Sotos'
residence. As they were leaving the parking lot, they were
stopped by the police and taken to the Anchorage Police
Department. Mercedes was told that if she did not cooperate, her
children would be taken away, she would go to jail for twenty
years, and she would be deported. Mercedes agreed to cooperate
with the police.
Early on the morning of August 2, Dora Sosa and
Mercedes Sosa returned to Mercedes' apartment with the package.
The police were waiting outside in the hallway of the building.
Castillo was in the apartment, sitting with his and Mercedes'
baby. Castillo looked upset when they entered the apartment, and
asked Mercedes what had taken her so long. Dora was carrying the
cocaine, and said to Castillo, "Here's [Badoino's] stuff."
Castillo motioned to a table in the living room; Dora put the
package on the table. Castillo motioned towards money on the
table, but Dora left without taking the money.
After Dora Sosa left the apartment, the police entered
and served a search warrant. Castillo was on the telephone, and
the cocaine and $200 were on the living room table. Castillo was
convicted based upon this evidence.
Castillo argues that he was deprived of his right to a
unanimous verdict on the crime which he allegedly committed. We
agree with Castillo. It is necessary for us to discuss a certain
amount of background information in order to explain our
decision.
Before closing arguments, the state sought a ruling
from the court whether under State v. James, 698 P.2d 1161
(Alaska 1985), and Ward v. State, 758 P.2d 87 (Alaska 1988), the
state could argue that Castillo was guilty as either an
accomplice or a principal, and whether the jury needed to decide
between these two theories in order to find Castillo guilty.
Castillo objected on the grounds that there was no evidence of
accomplice liability; the court overruled the objection.
In opening statement, the state asserted that the
evidence would show that Castillo either possessed the cocaine or
aided and abetted Badoino. The state argued in closing argument
that Castillo could be found guilty as a principal, for either
actual or constructive possession of the cocaine, or he could be
found guilty as an accomplice to Dora Sosa's or Vittorio
Badoino's possession.
In its brief on appeal the state summarizes the
particular theories under which it contends the jury could have
found Castillo guilty at trial:
Castillo could be found guilty based on his
having knowingly taken control of
approximately one kilogram of cocaine, by
directing Dora Sosa to receive the package he
had sent to her, to bring the package to him,
and to place the package of cocaine on the
living room table in Mercedes Sosa's
apartment. Alternatively, Castillo could be
found guilty of constructive possession for
having sent the cocaine into the state of
Alaska with the intent that it be delivered
to Dora Sosa and then to Badoino. Castillo
could also be found guilty as an accomplice
of Dora Sosa based on his having sent the
cocaine to her and having arranged for her to
deliver it to either Badoino or himself.
During jury deliberation, the jurors submitted a note
asking whether they needed to be unanimous as to whether Castillo
was guilty as an accomplice or a principal. At that time,
Castillo again objected to the accomplice liability theory, and
asked for a limiting instruction. In particular, Castillo
objected on the ground that the jury might find him guilty for
conduct which took place in New York. The trial court refused to
give a limiting instruction. Castillo also requested a special
verdict form which would require the jury to state "whom he's an
accomplice of." In response to the jury note, the trial court
gave the following instruction:
Your verdict must be unanimous. All
twelve must agree on the verdict. For
example, if 6 of the jurors agree the
defendant was guilty of the crime charged in
the indictment and 6 agree the defendant was
legally accountable for the conduct of
another person who committed the offence
[sic] of misconduct involving a controlled
substance in the third degree, on or about
August 2, 1989, then your verdict would be
guilty.
On the other hand, if all twelve agree
that the defendant was neither guilty of the
crime charged in the indictment, nor was
legally accountable for the conduct of
another person who committed the offense of
misconduct involving a controlled substance
in the third degree on or about August 2,
1989, then your verdict would be not guilty.
The verdict form you have been given is
the only verdict form you need to express a
unanimous verdict.
The leading Alaska cases which discuss the extent to
which jury verdicts must be unanimous are State v. James, 698
P.2d 1161 (Alaska 1985), and Ward v. State, 758 P.2d 87 (Alaska
1988). In James, the jury was instructed that it could
find the defendant guilty of first-degree assault under either AS
11.41.200(a)(1) (recklessly causing serious injury by means of a
dangerous instrument) or AS 11.41.200(a)(3) (knowingly engaging
in conduct that results in serious injury under circumstances
manifesting extreme indifference to the value of human life).
The defendant was convicted under a general verdict of guilty.
On appeal, the supreme court considered whether the defendant was
entitled to a unanimous jury verdict on a particular theory of
the crime charged.
The court held that a jury need be unanimous only "in
its conclusion that the defendant committed a single offense
described in the statute." James, 698 P.2d at 1165. The court
noted that there was only one criminal act alleged, and only one
incident involved. Id. at 1166. The court specifically stated
that the unanimity requirement is met if the jury can agree on
"just what the defendant did." Id. at 1167. The court went on
to distinguish James from a case in which a general verdict, when
there are two different theories for criminal liability, would be
insufficient: "[T]he case before us does not present a situation
in which jurors might have split over whether the defendant
committed a single criminal act; in such a case it might well be
necessary to require unanimity upon the actus reus element." Id.
The supreme court again discussed the unanimity
requirement in Ward. In that case, the jury was instructed that
it could find the defendant guilty of driving while intoxicated
either by finding that he was driving under the influence of
intoxicating alcohol, or by proof that his breath alcohol level
exceeded the legal limit. Ward, 758 P.2d at 88; AS
28.35.030(a)(1) and (a)(2). The jury convicted him under a
general verdict.
On appeal, Ward argued that the jury should have been
required to be unanimous as to its theory of guilt. The court
held that because the two statutory sections "describe merely
different theories by which a person may be shown to have driven
while intoxicated, it was not necessary that the jury agree
unanimously upon the theory by which Ward violated the statute."
Ward, 758 P.2d at 92. The court also noted that the conduct
prohibited by the two sections is similar; an offender will
frequently have violated both sections by drinking alcohol. Id.
In both James and Ward, the defendant was charged with
violating two alternative sections of the same statute. The
supreme court noted in both cases that in determining whether a
defendant can be convicted under a general verdict when the
theories of liability differ, it is important that both theories
describe the same criminal act or incident.
In the instant case, the state's different theories of
liability described different criminal acts. In closing
argument, the prosecutor argued that Castillo could be found
guilty of actual or constructive possession for telling Dora Sosa
over the telephone to bring the "stuff" to Mercedes' apartment,
and then gesturing toward the money. The state argued that under
the same facts, Castillo could be found guilty as an accomplice.
However, the state also argued that the jury could find
Castillo guilty under a different set of facts. The prosecutor
argued that Castillo could be found guilty as an accomplice for
initially telling Dora Sosa that she would get $200 for each
package, thereby aiding Badoino in planning or committing the
offense. This theory echoed the prosecutor's opening statement
that the evidence would show that Castillo aided and abetted
Badoino. This does not describe a different theory by which the
jury could find Castillo guilty of the same criminal act. Ward,
758 P.2d at 92. Rather, this describes a different criminal
event. The jury might have found that, based upon the agreement
to pay Dora Sosa for receipt of the package, Castillo was guilty
of aiding and abetting the delivery of the July 28 package.
Because the prosecution presented different theories to
the jury which described different criminal events, it is unclear
whether the jury agreed on "just what the defendant did." James,
698 P.2d at 1167. The jurors may have split on the criminal act
of which Castillo was guilty -- six may have found that he was
guilty of actual possession for directing Dora Sosa to place the
package on the table, while the other six may have found him
guilty as an accomplice for planning with Badoino to send the
packages from New York and pay Dora Sosa for receipt and
delivery.
Therefore, because the jurors may have found Castillo
guilty based on different criminal acts, a general verdict form
was insufficient. We conclude that Castillo was deprived of his
right to a unanimous verdict on what criminal act he committed.
We reverse Castillo's conviction.
Castillo raises several other issues which may be
disposed of summarily. Castillo contends that the case against
him should be dismissed because he was entrapped. Alaska has an
objective approach for determining whether entrapment has
occurred. Grossman v. State, 457 P.2d 226, 229 (Alaska 1969).
Under the objective test the question for the trial court is
whether the police conduct "falls below an acceptable standard
for the fair and honorable administration of justice." Pascu v.
State, 577 P.2d 1064, 1067 (Alaska 1978). Entrapment is an
affirmative defense. AS 11.81.450. Castillo therefore had the
burden of proving the defense by a preponderance of the evidence.
AS 11.81.900(b)(1). We conclude that the trial court did not err
in finding that Castillo had not established that the police
conduct fell below the acceptable standard. The trial court also
did not err in refusing to dismiss the indictment on this ground.
Entrapment is an affirmative defense and is a question for the
court. The prosecution had no duty to present Castillo's
entrapment case to the grand jury. See Frink v. State, 597 P.2d
154, 164-66 (Alaska 1979).
Castillo next argues that there was insufficient
evidence presented to the grand jury to establish a criminal
offense. We conclude that the trial court did not err in finding
that the state presented sufficient evidence to the grand jury to
indict Castillo for possession of cocaine for the purpose of
distribution. State v. Parks, 437 P.2d 642, 644 (Alaska 1968) (a
court reviewing a claim that the evidence presented at grand jury
was inadequate to support the charge must determine whether the
evidence gave a sufficiently detailed account of the offense
charged so that if unexplained or uncontradicted it would warrant
conviction for the offense).
Castillo next argues that his indictment was based on
the testimony of Dora Sosa, and that her statements linking him
to the package were based on hearsay and speculation. We
conclude that the trial court did not err in refusing to dismiss
the indictment against Castillo on this ground.
Castillo next argues that Dora Sosa's grand jury
testimony concerning her receipt of other packages, which were
allegedly sent by Castillo, constituted inadmissable prior bad
act evidence. We conclude that the trial court did not err in
determining that this evidence was more probative than
prejudicial. See A.R.E. 404(b) and A.R.E. 403.
Castillo next argues that there was insufficient
evidence presented to the grand jury to prove that he possessed
the cocaine in the state of Alaska. He argues that if the only
evidence against him was that he sent cocaine to Dora Sosa from
New York, the trial court should have dismissed the case for lack
of subject matter jurisdiction. We conclude that the trial court
did not err in determining that there was sufficient evidence to
prove that Castillo was in possession of cocaine in Alaska.
Castillo next argues that there was cumulative error.
We do not find cumulative error. Since Castillo is receiving a
new trial, we find it unnecessary to address the other issues
which he raises.
The conviction is REVERSED.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
