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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILTON E. TONEY, )
) Court of Appeals No. A-3357
Appellant, ) Trial Court No. 3AN-88-5972
Cr
)
v. )
) O P
I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1223 - May 15, 1992]
________________________________)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Mark C. Rowland,
Judge.
Appearances: Daniel Weber, Anchorage, for
Appellant. Shelley K. Chaffin, 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.
At a jury trial in the Anchorage superior court, Wilton
E. Toney was found guilty of three counts of third-degree miscon
duct involving a controlled substance (two counts of sale of
cocaine and one count of possession of cocaine with intent to
deliver), AS 11.71.030(a)(1). On appeal, Toney challenges three
evidentiary rulings made by the superior court. We affirm.
On July 21, 1988, Anchorage Police Officer Michael
Hill, working undercover, was introduced to a man named Burnis
"Butch" Sims. Hill told Sims that he wished to buy cocaine.
Sims gave Hill his telephone number and told Hill to call him.
The next day, Hill telephoned Sims and asked if Sims could sell
him any cocaine. Sims told Hill that he would not know until
late in the afternoon whether he could sell him cocaine, because
"Toney" was not available until after 4:00 p.m..
Hill eventually purchased cocaine from Sims on July 28.
One week later, on August 5, Hill contacted Sims again and asked
to purchase more cocaine. Sims told Hill to meet him at a
Wendy's restaurant. Hill arrived at Wendy's just as Sims was
getting ready to leave; Sims told Hill that he had arrived just
in time, but that they had to drive to a 7-eleven instead. Hill
and Sims drove separately to the 7-eleven, and then Sims got into
Hill's car. Sims told Hill that he did not have the cocaine with
him, but that it would arrive shortly. Sims also told Hill that
he always did business with the same supplier, and that this
supplier had recently delivered some "really good stuff".
A few minutes later, a blue and gray Dodge Ram Charger
parked next to Sims's truck, and Sims told Hill, "Here he is
now." Sims got out of Hill's car and climbed into the passenger
door of the Ram Charger. Sims remained in the truck for a few
minutes, and then he returned to Hill's vehicle with two ounces
of cocaine which he had bought from "[his] guy". Hill and Sims
then went to Sims's apartment, where Sims cut the cocaine into
half an ounce for Hill.
At the same time, another police officer, Officer
Gaither, had been watching the transaction between Hill and Sims
at the 7-eleven in hopes of observing a third participant to the
transaction. The conversation between Hill and Sims was being
transmitted and recorded. Gaither was informed to watch for a
Dodge Ram-type vehicle. Gaither watched the blue and gray Ram
Charger drive into the parking lot of the 7-eleven. When the Ram
Charger left, Gaither followed until it stopped in the parking
lot of a business complex. There, he saw Wilton Toney get out of
the truck.
While Hill and Sims were talking at the apartment, Sims
assured Hill that he (Sims) could call his drug supplier at any
time of the day or night and get delivery of more cocaine. Hill
commented that this supplier must not get any sleep, and Sims
replied, "You know, I asked him the other day, I said `Toney,
when do you get some sleep?', and he said, `When people stop
giving me money.'"
On August 11, 1988, Hill called Sims, asking to buy one
ounce of cocaine. Sims told Hill that he would call him back
with details as soon as his "contact" called him. Apparently,
Sims's contact called, because Sims then arranged to meet Hill by
the Burger King restaurant on Penland Parkway. Hill met Sims,
who was with a woman, and gave him $1,050. Again, Sims did not
have the cocaine with him; he drove across the street and went
into a record store. Toney, driving a white Corvette, was parked
in front of the store. Toney and Sims conversed, and then Toney
went to his Corvette to retrieve something. Upon Toney's return,
Toney and Sims walked back to Sims's car, where they appeared to
exchange items. Toney appeared to be counting money. Sims
returned to Hill with the cocaine.
On September 14, 1988, Officers Ellis and Cress,
driving an unmarked police car, were following Toney in his Ram
Charger. They called another officer, Officer Nelson, who was
driving a marked patrol car, and asked her to pull Toney over.
With Officers Ellis and Cress observing, Officer Nelson pulled
Toney over for a probation violation.
After Toney had identified himself by furnishing his
driver's license, Officer Cress placed Toney under arrest.
Officer Nelson took Toney to her patrol car, where she patted him
down. During this pat-down, Officer Nelson took several items
from Toney's pockets and placed them on top of her patrol car.
Officer Nelson alerted Officer Cress that she had found
what appeared to be cocaine. Cress turned around and saw a clear
plastic bag in Nelson's hand, which Nelson then placed on top of
her patrol car. Later, Nelson marked the items on top of her car
to indicate where she had found them.
A search of Toney's car uncovered a red sock on the
floor by the driver's seat; this sock contained $72,174 in cash.
Toney's car also contained a green box which held $539 and twenty-
nine grams of cocaine.
Toney was charged with two counts of third-degree
misconduct involving a controlled substance for his complicity in
the two sales of cocaine between Sims and Hill. The third count,
possession of cocaine with intent to deliver, was based on
Toney's possession of cocaine at the time of his arrest. The
jury found Toney guilty of all three counts.
Before Toney's trial commenced, the State filed a
memorandum addressing evidentiary issues that would likely come
up at trial. One of these issues was the admissibility of Sims's
statements to Officer Hill during their various conversations and
drug transactions. Sims was not going to testify for the govern
ment. The prosecution contended, however, that Sims's statements
identifying Toney as his supplier and his statements attesting to
Toney's reliability and the quality of Toney's cocaine were
admissible under Alaska Evidence Rule 801(d)(2)(E), the co-
conspirator exception to the hearsay rule.
The defense filed no responding memorandum. However,
just before the prosecution's opening statement, Toney's attorney
raised the issue of Sims's out-of-court statements. The defense
attorney conceded that Sims's utterances had been made during the
course of a conspiracy to sell cocaine, but he argued that Sims's
identification of Toney as the source of the cocaine did not
further the conspiracy in any manner; thus, the defense attorney
contended, all specific references to Toney's name should be
deleted from Sims's statements. The prosecutor responded by
making a detailed offer of proof concerning Sims's various
utterances and why they should be considered co-conspirator
statements. At the conclusion of this offer of proof, the
defense attorney modified his argument slightly: he asserted
that, since the first drug sale had not occurred until August 5,
Sims's statements on July 22 and July 28 were not made during the
course of a conspiracy.
Superior Court Judge Mark C. Rowland ruled that Sims's
statements were admissible as co-conspirator statements. Judge
Rowland concluded first, that there was sufficient evidence,
apart from Sims's utterances, to establish the existence of a
conspiracy, second, that Sims's statements were made in
furtherance of that conspiracy, and third, that these statements
carried sufficient indicia of reliability to establish their
trustworthiness. 1 2
On appeal, Toney challenges the superior court's
finding that there was sufficient independent evidence to
establish that Sims and Toney conspired to engage in criminal
activities. Arnold v. State, 751 P.2d 494, 502 (Alaska App.
1988); Stumpf v. State, 749 P.2d 880, 889 (Alaska App. 1988). To
obtain reversal of this finding of fact, Toney must demonstrate
that Judge Rowland's conclusion was clearly erroneous. Stumpf,
749 P.2d at 890.
The evidence at trial showed that, twice when Sims sold
cocaine to Officer Hill, Sims arranged for Hill to meet him at a
particular location, Toney drove to that same location, Sims met
with Toney, and then Sims immediately returned to Hill with the
cocaine. This evidence is sufficient to support Judge Rowland's
finding that Sims and Toney were working together.
In his brief, Toney points out various weaknesses in
the State's identification of Toney as the driver of the Dodge
truck on August 5; Toney also contends that a later police search
of his residence failed to uncover any evidence specifically
linking Toney to Sims. However, while the evidence may not
uniformly support a finding of conspiracy, we are constrained to
view the evidence in the light most favorable to upholding the
trial court's decision. Nashoalook v. State, 663 P.2d 975, 977
(Alaska App. 1983). Judge Rowland's finding of a conspiracy was
not clearly erroneous.
Toney also points out that Judge Rowland's ruling was
based on the prosecution's pre-trial offer of proof, not on
actual evidence admitted at trial. However, Toney never renewed
his objection to this evidence, nor did he ever indicate to Judge
Rowland that he believed the trial evidence had deviated
materially from the prosecutor's offer of proof.
We therefore affirm Judge Rowland's finding that a
conspiracy existed. Toney has not renewed the other objections
made at trial. Consequently, we uphold the superior court's
decision to admit Sims's out-of-court statements.
Toney next challenges the superior court's decision to
admit the more than $72,000 in cash found in the sock in Toney's
vehicle. Toney argues that this money was completely irrelevant
to the charges against him, and that this evidence was quite
prejudicial because it could lead the jury to infer that Toney
had engaged in many drug transactions other than the ones
charged. Judge Rowland ruled that the money was probative
because it was found in Toney's vehicle and because the money
itself tested positive for cocaine. Judge Rowland further ruled
that the probative value of this evidence outweighed its
potential for unfair prejudice.
The question on appeal is whether Judge Rowland abused
his discretion in admitting this evidence. Hawley v. State, 614
P.2d 1349, 1361 (Alaska 1980). Toney has not shown an abuse of
discretion. Money found in a defendant's possession was admitted
under similar circumstances in Hawley. The defendant in Hawley
was charged with sale and attempted sale of drugs; when the
defendant was arrested, more than $1,000 in cash was found in his
possession, but this money could not be linked to the particular
transactions for which the defendant was charged. Id. at 1361.
Upholding the trial court's decision to admit the money, the
supreme court reasoned that Hawley's possession of such a large
amount of cash was relevant because it tended to corroborate the
prosecution's assertion that he was a drug trafficker. Id.
Under similar reasoning, we find that Judge Rowland did
not abuse his discretion when he concluded that the probative
force of the $72,000 cash outweighed its potential for unfair
prejudice. We note that Toney was charged with both sale of
cocaine and possession of cocaine with intent to deliver.
Toney's possession of a large amount of cash, money dusted with
cocaine, was probative of what he intended to do with the cocaine
found in his possession at the time of his arrest. And, as the
supreme court recognized in Hawley, Toney's possession of this
money was also probative of Toney's identity as Sims's supplier.
Toney's final contention on appeal is that the State
did not present a sufficient evidentiary foundation to support
the admission of the cocaine found in Toney's possession at the
time of his arrest. As noted above, Officer Nelson was the
officer who actually seized the cocaine from Toney during a pat-
down search at the time of Toney's arrest. Officer Nelson was
out of state at the time of Toney's trial and did not testify.
Officer Cress, who also participated in Toney's arrest,
testified that Officer Nelson was conducting the pat-down of
Toney when she said, "I found some cocaine." This remark caused
Cress to turn and look toward Nelson and Toney; he observed
Nelson holding a clear plastic bag in her hand. The bag appeared
to contain cocaine. Cress observed Nelson place the bag on the
roof of her patrol car. Cress later retrieved the bag from the
top of Nelson's patrol car and saved it as evidence.
Toney objected to the admission of this bag, contending
that, in the absence of testimony from Officer Nelson, there was
insufficient evidence to establish "chain of custody" -- that is,
to establish the fact that the bag the prosecution was offering
into evidence had indeed been discovered during the pat-down
search of Toney.
Judge Rowland found that Officer Nelson's exclamation
when she found cocaine during the pat-down search of Toney was
admissible as a statement of present sense impression under
Evidence Rule 803(1). Based on Officer Cress's testimony (includ
ing his account of Nelson's out-of-court statement), Judge
Rowland ruled that the State had established, to a reasonable
certainty, that the bag of cocaine offered into evidence was the
bag discovered on Toney's person during the pat-down search.
Evidence Rule 901(a).
On appeal, Toney does not question Judge Rowland's
ruling that Officer Cress could testify to Officer Nelson's
statement under Evidence Rule 803(1). Toney argues, however,
that even with Officer Nelson's statement there was insufficient
evidence to establish a proper foundation for the bag of cocaine
under Evidence Rule 901(a). He contends that, absent direct
testimony from Nelson, the bag could not be identified with
reasonable certainty.
We reject Toney's argument. Officer Cress had just
arrested Toney and had directed Officer Nelson to search him. In
the middle of this search, Nelson said aloud that she had found
cocaine. Nelson's statement was admitted under Evidence Rule
803(1) for the truth of the matter asserted. Cress turned and
observed Nelson holding a bag; he then saw her place the bag on
the roof of her patrol car. A few minutes later, Cress retrieved
this bag from the roof of the patrol car and placed it into
police evidence. While the bag was not in Cress's view at all
times, no other circumstances cast doubt on the inference that
the bag Cress retrieved from the roof of Nelson's patrol car was
the same one Nelson had discovered during the pat-down search of
Toney. Judge Rowland did not abuse his discretion when he ruled
that the State had satisfied the foundational requirement of
Evidence Rule 901(a).
The judgement of the superior court is AFFIRMED.
_______________________________
1 We note that several of Sims's out-of-court statements
were apparently not introduced for the truth of the matters
asserted in those statements. They therefore were not hearsay
under Alaska Evidence Rule 801(c); see the authorities cited in
the Commentary to Evidence Rule 801(c). Because these statements
were not hearsay, they would have been admissible without
reliance on the co-conspirator exception.
2 In Hawley v. State, 614 P.2d 1349, 1358-59 (Alaska 1980),
the Alaska Supreme Court held that co-conspirator statements must
be accompanied by "indicia of reliability" to satisfy the confron
tation clause of the Sixth Amendment. Hawley relied upon the
Ninth Circuit's decision in United States v. Snow, 521 F.2d 730,
734-36 (9th Cir. 1975), which in turn relied upon the plurality
opinion in Dutton v. Evans, 400 U.S. 74, 88-89; 91 S.Ct. 210,
219; 27 L.Ed.2d 213, 227 (1970).
Since Hawley, the United States Supreme Court has squarely
held that the Sixth Amendment does not require proof of separate
indicia of reliability for a co-conspirator statement or for any
other hearsay statement that "falls within a firmly rooted
hearsay exception". Bourjaily v. United States, 483 U.S. 171,
181-84; 107 S.Ct. 2775, 2782-83; 97 L.Ed.2d 144 (1987). See also
United States v. Paris, 827 F.2d 395, 400-01 (9th Cir. 1987),
recognizing that Bourjaily superseded former Ninth Circuit law on
this subject.
Because the issue is not raised here, we need not decide
whether any different rule is required under Article I, 11 of
the Alaska Constitution.
