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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
JERRY L. PRUITT, )
) Court of Appeals No. A-3678
Appellant, ) Trial Court No. 3KN-89-1139
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1217 - April 10, 1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Kenai, James A. Hanson, Judge.
Appearances: Carol A. Brenckle, Kenai, for
Appellant. Kenneth M. Rosenstein, Assistant
Attorney General, Office of Special Prosecu
tions and Appeals, Anchorage, and Charles E.
Cole, Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
Jerry L. Pruitt was convicted, following a jury trial
in the Kenai superior court, of the crime of third-degree
misconduct involving a controlled substance (sale of cocaine), AS
11.71.030(a)(1). Pruitt appeals his conviction. He asserts that
a portion of the evidence used against him at trial was obtained
in violation of his constitutional guarantee of privacy defined
in State v. Glass, 583 P.2d 872 (Alaska 1978). Pruitt also
asserts that he was prejudiced when the prosecuting attorney
cross-examined him about his prior arrests for crimes involving
dishonesty. We affirm the trial court's ruling on the Glass
issue, but we reverse Pruitt's conviction because of the
prosecutor's improper cross-examination.
In the summer of 1989, Hortencia Rangel was working as
an undercover police agent for the Kenai police department,
buying drugs from suspected drug dealers. Kenai Police Officer
David Hoffman obtained a Glass warrant to record conversations
between Rangel and a suspect named Andrew Reeve.
About 10:30 p.m. on July 22, 1989, Rangel went to
Reeve's trailer to buy cocaine. However, Reeve did not have any
cocaine. Rangel gave Reeve $100 to purchase one gram of the
drug, and then the two of them left in Rangel's car in search of
a supplier. After two unsuccessful attempts to find cocaine,
Reeve left Rangel's car. When Rangel went back to look for
Reeve, she found him in another car with Jerry L. Pruitt. The
men told Rangel to return to Reeve's trailer and wait there for
them.
Back at the trailer, Rangel waited until Reeve and
Pruitt arrived. Pruitt told Rangel that he had been able to
locate only one gram of cocaine, and that he wanted half of it
for himself. Rangel received a slip of cocaine weighing 0.4
grams, and (because she had previously given Reeve $100 for one
gram of cocaine) she also received $50 in change. This
conversation was recorded by Officer Hoffman pursuant to the
Glass warrant.
After Pruitt was indicted for the sale of cocaine, he
moved to suppress the recording of his statements during this
conversation. He argued that, because the Glass warrant did not
specifically name him, the police were not authorized to record
his words. The superior court denied Pruitt's motion.
On appeal, Pruitt renews his argument that his recorded
statements should have been suppressed because the Glass warrant
had only authorized the Kenai police to record conversations
between Rangel and Reeve. However, in Pruitt's case, exigent
circumstances justified the police in recording Pruitt even
though the existing Glass warrant did not specifically name
Pruitt. The Kenai police had a valid Glass warrant to record
Reeve. As explained above, Pruitt unexpectedly entered the
transaction.
Exigent circumstances justifying a warrantless search
or seizure are established when the police have probable cause to
conduct the search or seizure and there is "a compelling need for
official action and no time to secure a warrant." Ingram v.
State, 703 P.2d 415, 422 (Alaska App. 1985), aff'd 719 P.2d 265
(Alaska 1986), quoting Michigan v. Tyler, 436 U.S. 499, 509; 98
S.Ct. 1942, 1949; 56 L.Ed.2d 486, 498 (1978).
Although the Kenai police had shown Pruitt's picture to
Rangel, identifying him as a suspected drug seller, there is no
indication that the police anticipated that Pruitt would become
involved in Rangel's purchase of cocaine from Reeve. The first
indication that Pruitt might be involved in the transaction came
when Rangel returned to where she had dropped Reeve off and found
Reeve sitting in a car with Pruitt. At that time, Reeve told
Rangel to go back to his trailer and wait there.
The fact that Pruitt was already suspected of selling
drugs and that he was now in a car with Reeve, apparently discuss
ing a proposed sale of cocaine, provided probable cause to issue
a Glass warrant for Pruitt. Because Reeve had told Rangel to go
back to his trailer and wait for the delivery of the cocaine, it
was likely that there was not sufficient time to obtain a
separate Glass warrant naming Pruitt. Had Rangel left the
trailer and taken the time to obtain a warrant for Pruitt, Reeve
and Pruitt might have become suspicious and abandoned the
transaction. Under these circumstances, the police were
justified in taping Pruitt's participation in the conversation
with Rangel and Reeve.
Support for this conclusion is found in this court's
decision in Fox v. State, ___ P.2d ___, Opinion No. 1206 (Alaska
App., February 21, 1992). In Fox, a Glass warrant was issued for
John Fox. An undercover agent went to John's house, but he was
not home. Instead, Alex Fox, John's brother, answered the door.
Alex asked the undercover agent what he wanted; the agent
responded that he had arranged to buy cocaine from John. Alex
stated that he would "take care" of him, and proceeded to sell
cocaine to the agent.
The trial court in Fox found that, because of John's
unexpected absence and the unexpected intervention of Alex, the
exigent circumstances exception applied to the warrantless taping
of Alex Fox's statements. This court affirmed. Fox, slip
opinion at 3.
Similarly, in this case, Pruitt's involvement in the
cocaine purchase was unforeseen, and Rangel, purportedly an
anxious cocaine buyer, could not leave unexpectedly without
risking suspicion and potentially jeopardizing the investigation.
Therefore, exigent circumstances existed for taping
Pruitt. The superior court correctly denied Pruitt's motion to
suppress his recorded statements.1
This brings us to Pruitt's second argument on appeal.
Pruitt testified on his own behalf at trial. On direct examina
tion, Pruitt testified that his driver's license was revoked
because he received three speeding tickets in one year. He also
testified that he had been convicted of growing marijuana and had
spent four months in jail for this crime. During cross-examina
tion, the prosecuting attorney (who was not the attorney
representing the State of Alaska on appeal) asked Pruitt the
following questions:
PROSECUTOR: Now, Mr. Pruitt, in
addition to the other offenses that you've
discussed, you've also been charged with a
number of crimes involving dishonesty, isn't
that correct?
PRUITT: (Indiscernible)
PROSECUTOR: Now, Mr. Pruitt, isn't it
true that you were charged with making a
false police report?
PRUITT: Yes, ma'am, [but] that was
dismissed.
PROSECUTOR: But you were charged with
that, correct?
THE COURT: Approach the bench, counsel.
Following a whispered conversation at the bench, the prosecutor
announced that she had no further questions for Pruitt. The jury
was excused, and Pruitt's attorney requested a mistrial. Judge
Hanson took the motion under advisement over the weekend, then
ruled that a curative instruction would remedy the situation.
While a trial judge's decision to grant or deny a mistrial is
reviewable only for abuse of discretion, Roth v. State, 626 P.2d
583, 585 (Alaska App. 1981), we conclude that a mistrial should
have been granted under the circumstances of this case.
The prosecutor's cross-examination of Pruitt clearly
and inexcusably violated Alaska Rule of Evidence 609. Under Rule
609, a party may impeach a witness with criminal convictions
involving dishonesty. Section (c) of the rule declares that a
party wishing to impeach a witness in this fashion must first
alert the trial judge to the planned impeachment and obtain the
court's permission; the court is to permit the impeachment only
after weighing its probative force against its potential for
unfair prejudice. Here, the prosecuting attorney, without
seeking the court's permission, cross-examined Pruitt about a
criminal charge that had been dismissed. Moreover, the
prosecutor's question clearly implied that Pruitt had been
charged with "a number of [other] crimes involving dishonesty".
In McBeth v. State, 652 P.2d 120 (Alaska App. 1982),
this court reversed a criminal conviction under analogous
circumstances. In McBeth, the prosecutor attempted to impeach
the defendant's alibi witness, Lafferty, by asking him if it was
true that he and the defendant had assaulted a man nine days
before. Lafferty replied that he had not done this. The defense
made no immediate objection to the prosecutor's question, but,
after the jury was excused, McBeth's attorney moved for a
mistrial. Id. at 125.
Reversing McBeth's conviction, this court stated:
An accusation of the sort which was made
here, from a person who holds the office of
District Attorney, could have a significant
impact on the jury. If the accusation were
believed, it might very well have damaged the
credibility of McBeth and Lafferty and
[could] have undercut McBeth's alibi defense
in an unfair and prejudicial manner.
Reversal of McBeth's conviction is therefore
required.
Id. at 126.
Pruitt's situation is similar. Pruitt's defense was
that he was not the "Jerry" whose voice was heard on the tape.
This defense, although arguably weak2, was nevertheless
colorable, and it depended on Pruitt's personal credibility. The
prosecutor's obvious purpose in cross-examining Pruitt about the
dismissed charge of filing a false police report was to undermine
Pruitt's credibility. Additionally, as Pruitt points out, the
prejudice to his case was exacerbated by the fact that these
improper questions were the last things the jury heard before
taking the weekend recess. It was obvious on Friday afternoon,
before the jury was excused for the weekend, that a curative
instruction was the minimum action needed to remedy the
prejudicial effect of the improper cross-examination. Such an
instruction should have been given at that time. The lengthy
delay between the improper questions and the court's curative
instruction may well have caused the jurors to dwell on the
matter too long for a short instruction to cure the problem.
Ordinarily, when the court withdraws improper evidence
from the jury's consideration and cautions the jury to disregard
it, the cautionary instruction is "presumed to cure any error
which may have been committed". Roth v. State, 626 P.2d at 585,
quoting Anderson v. State, 438 P.2d 228, 232-33 n.15 (Alaska
1968). However, under the circumstances of this case, we
conclude that the fairness of Pruitt's trial was substantially
prejudiced by the improper cross-examination and we also conclude
that the later curative instruction did not remedy the situation.
Pruitt was entitled to a mistrial.
Pruitt argues that the prosecutor's improper cross-
examination amounted to such flagrant prosecutorial misconduct
that no further prosecution should be allowed. We conclude that
the State's misconduct does not require us to bar renewed prosecu
tion. As Pruitt concedes, when a mistrial is declared because of
prosecutorial misconduct, renewed prosecution will be barred only
when
it is clear that the prosecutor, motivated by
a desire to avoid an acquittal in a case
which is going badly, engages in purposeful
misconduct which forces the court to declare
a mistrial[.]
Muller v. State, 478 P.2d 822, 827 (Alaska 1971).
Pruitt did not raise this issue below, and our review
of the record does not convince us that the government's case was
going so badly that the prosecutor purposefully sought a mistrial
to avoid an acquittal. The police had Pruitt's voice on tape;
Officer Hoffman testified that he recognized the voice on the
tape as Pruitt's. Hortencia Rangel, the undercover agent who
personally participated in the drug transaction, had previously
seen a photograph of Pruitt, and she was capable of identifying
him. Moreover, Judge Hanson stated that Pruitt's main defense
witness, Brant Witner, was so incredible that there was no doubt
in the court's mind "that he clearly perjured himself."
Upon this record, we cannot find that the prosecutor's
misconduct was motivated by a desire to avoid Pruitt's acquittal.
Therefore, although we reverse Pruitt's conviction, he may be
retried.
The judgement of the superior court is REVERSED.
_______________________________
1 Judge Hanson's order denying Pruitt's suppression motion
declares that the motion was denied because the taping fell
within the "plain view" doctrine. Neither the Alaska Supreme
Court nor this court has decided whether the plain view doctrine
can be extended to Glass warrants. However, Judge Hanson's
decision was correct under the "exigent circumstances" doctrine
and therefore is to be affirmed. Fireman's Fund American
Insurance Companies v. Gomes, 544 P.2d 1013, 1015 n.6 (Alaska
1976).
[An appellate] court is not bound by the reasoning
articulated by the trial court and can affirm ... on
alternative grounds. Moore v. State, 553 P.2d 8, 21
(Alaska 1976). Moreover, [an appellate] court should
consider any matter appearing in the record, even if
not passed upon by the lower court, in defense of the
judgment. State v. Pete, 420 P.2d 338, 341 (Alaska
1966); Ransom v. Haner, 362 P.2d 282, 285 (Alaska
1961).
Wright v. State, ___ P.2d ___, Opinion No. 3802 at 4 (Alaska,
January 24, 1992).
2 Pruitt was identified by Rangel, who had previously seen
a picture of him. Additionally, Officer Hoffman recognized
Pruitt's voice.
