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THE COURT OF APPEALS OF THE STATE OF ALASKA
GARRY D. JOHNSON, )
) Court of Appeals Nos. A-5477/5478
Appellant, ) Trial Court Nos. 1KE-S91-689CR
) t/w 1KE-S93-705/1449CR
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1471 - June 14, 1996]
______________________________)
Appeal from the Superior Court, First Judicial
District, Ketchikan, Thomas M. Jahnke, Judge.
Appearances: David M. Seid, Assistant Public
Defender, Ketchikan, and John B. Salemi, Public
Defender, Anchorage, for Appellant. Cynthia M.
Hora, Assistant Attorney General, Office of
Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Garry D. Johnson pled no contest to one count of
misconduct involving a controlled substance in the third degree, AS
11.71.030(a)(1) (sale of cocaine), and was separately convicted
after a nonjury trial of one count of misconduct involving a
controlled substance in the fourth degree, AS 11.71.040(a)(2)
(possession of marijuana with intent to deliver). Superior Court Judge Thomas M. Jahnke sentenced Johnson to consecutive terms
totalling seven years' imprisonment. Johnson appeals, challenging
his conviction of fourth-degree controlled substance misconduct on
a number of grounds. Johnson also claims that his sentences on both
charges are excessive. We affirm.
In April of 1991, Johnson twice sold cocaine to an
undercover agent in Ketchikan; one transaction involved 4.4 grams
and the other involved 10.5 grams. Shortly thereafter, Johnson also
sold approximately two and one-quarter ounces of cocaine to an
undercover agent in Oregon.
Johnson was charged in Alaska with two counts of third-
degree misconduct involving a controlled substance for the Alaska
sales. He was separately charged in Oregon for the sale that
occurred there. After being charged, Johnson fled to California to
escape prosecution. In 1992, however, he was arrested by federal
authorities in California for smuggling more than 53 kilograms of
marijuana over the San Diego border from Mexico. In October of
1992, he was convicted in federal court for this offense and
received a sentence of one year and one day in prison.
Upon release in 1993, Johnson returned to Oregon to face
the outstanding Oregon charge for his 1991 cocaine sale; he was
convicted of delivery of a controlled substance and received two
years' probation. Thereafter, Johnson returned to Ketchikan and
pled no contest to one of the two still-pending Alaska cocaine sale
charges (the one involving 4.4 grams); in return for the plea, the
state dismissed the second charge.
Johnson was released pending his sentencing hearing; he
lived in the bunkhouse of a resort operated by his sister, near
Ketchikan. On June 6, 1993, while Johnson was still awaiting
sentencing, the police entered Johnson's bunkhouse and observed
drugs in his room. Relying on these observations, they secured the
room and obtained a search warrant. Upon executing the warrant,
they found one and one-half pounds of marijuana, an ounce of cocaine
in plastic baggies, scales, and a shaving cream can with a false
bottom filled with various drugs, including cocaine, four small bags
of white powder appearing to be cocaine or methamphetamine, and
morphine tablets. Johnson was arrested.
The day after the search, Johnson's sister cleaned up the
bunkhouse room that Johnson had occupied before his arrest; she
found a box containing an additional 6.5 ounces of marijuana. She
turned the drugs over to the authorities on June 8.
Several days later, on June 11, 1993, the grand jury
indicted Johnson for one count of misconduct involving a controlled
substance in the fourth degree. The charge related to the marijuana
seized by the police on June 6 pursuant to the search warrant.
Johnson was not immediately charged for possessing the marijuana
later found by his sister.
Johnson moved to suppress the evidence that had been
seized from his room, contending that the initial warrantless police
entry of the bunkhouse was unlawful. In October of 1993, Judge
Jahnke granted the motion to suppress all evidence the police seized
from Johnson's room on June 6. However, Judge Jahnke declined to
suppress the marijuana discovered by Johnson's sister on June 8.
Finding the discovery of the marijuana by Johnson's sister to be
attenuated from the prior unlawful police entry, the judge ruled
that the later-discovered marijuana was not a fruit of the initial
illegal search.
In response to Judge Jahnke's ruling, the state dismissed
the original charge and substituted a charge of misconduct involving
a controlled substance in the fourth degree based on the marijuana
found by his sister on June 8. Johnson moved to dismiss this
charge, alleging a speedy trial violation, as well as improper and
insufficient grand jury evidence and failure to present exculpatory
evidence. Judge Jahnke denied this motion and, following a nonjury
trial, convicted Johnson.
On appeal, Johnson renews many of the arguments he raised
below. Johnson argues initially that the marijuana discovered by
his sister was inadmissible as the fruit of the preceding illegal
search.
The exclusionary rule forbids the use of unlawfully seized
evidence or its fruits "up to the point at which the connection with
the unlawful search becomes 'so attenuated as to dissipate the
taint.'" Murray v. United States, 487 U.S. 533, 537 (1988) (quoting
Narone v. United States, 308 U.S. 338, 341 (1939)). The test of
attenuation is not whether the challenged evidence would have been
discovered "but for" the violation. Wong Sun v. United States, 371
U.S. 471, 488 (1963). Rather, it is whether derivative evidence
"has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary
taint." United States v. Froppe, 993 F.2d 1444, 1449 (9th Cir.
1993) (quoting Wong Sun, 371 U.S. at 488 (internal quotation
omitted)).
Although attenuation must be evaluated on a case-by-case
basis, the Ninth Circuit has articulated useful criteria for
resolving the issue. In United States v. Shephard, 21 F.3d 933, 939
(9th Cir. 1994), the court relied on the following three-factor
test:
First, we consider the proximity of the
illegal [police action] with the seizure of the
evidence. Second, we consider whether there
were independent intervening events that led
the police to the evidence. Third, we consider
the effect of suppression on the exclusionary
rule's purpose of deterring police misconduct.
These three factors are closely related.
In Shephard, the court applied these factors and declined
to find attenuation. Shephard was unlawfully arrested in front of
his home. Id. at 935. He asked one of the arresting officers to
retrieve his wallet from inside the house. Id. While inside, the
officer saw a revolver. Id. Shephard was charged with being a
felon in possession of a firearm. Id. As to the first factor,
proximity, the court in Shephard pointed out that "[i]t would be
difficult to find a case with much greater proximity" between the
illegal police activity and seizing the challenged evidence. Id.
at 939. Turning to the intervening events factor, the court noted
that there were none. Id. Finally, with regard to the effect of
suppression factor, the court stated that "the suppression of the
gun would deter state officers from routinely making unlawful
arrests in the knowledge that an opportunity to view the personal
premises or effects of the arrestee will almost inevitably and
immediately follow." Id.
Applying the same three-factor test, the Ninth Circuit
reached a different result in United State v. Jones, 608 F.2d 386
(9th Cir. 1979). Jones was illegally arrested on suspicion of
burglary; he had a hotel key in his possession. Id. at 388. The
police went to the hotel room without the key and knocked on the
door. Id. A person occupying the room answered, told the police
that he shared the room with Jones, and consented to a room search.
Id. The search uncovered evidence linking Jones to a burglary in
which he had not previously been a suspect. Id.
With reference to the proximity factor, the Jones court
found the circumstances of Jones' case inconclusive: although the
search of the hotel room was to some extent removed from the prior
illegal arrest, it was not necessarily so far removed as to be
attenuated. Id. at 391. By contrast, with reference to the
intervening events factor, the court found that although the
roommate's consent "was [not] alone sufficient to render the
evidence admissible, it is a significant factor especially when
considered in the light of the weakness of the initial connection
between the arrest and the discovery of the evidence." Id.
Finally, as to the effect suppression of evidence might have on law
enforcement, the court found that "applying the exclusionary rule
under these circumstances would have little [deterrent] value." Id.
For these reasons, the court found attenuation and declined to
suppress the evidence of the new burglary.
The circumstances of the present case fall far closer to
those in Jones than to those in Shephard. Here, a significant
period of time elapsed between the illegal police entry of Johnson's
bunkhouse and the discovery of additional marijuana by Johnson's
sister. Furthermore, Johnson's sister independently discovered the
marijuana and chose to inform the police. The police were in no way
involved in that choice; Johnson's assertions to the contrary
notwithstanding, the record contains no evidence supporting the
conclusion that Johnson's sister acted as a police agent in finding
or reporting the marijuana.
Finally, suppressing the marijuana reported by Johnson's
sister would serve no meaningful deterrent purpose. Johnson argues
that the marijuana discovered by his sister had simply been missed
by the police and that a finding of attenuation would in effect
reward the police "because they were sloppy during their . . .
illegal search." Yet it defies reason to think that police officers
conducting searches in questionable or marginal circumstances would
attempt to hedge their bets by purposely leaving incriminating
evidence behind in the hope that some independent third party might
discover and report it. (EN1)
The Ninth Circuit test thus supports Judge Jahnke's
finding of attenuation. Johnson advances no other persuasive
authority or argument in favor of suppression. Accordingly, we find
no error in the trial court's refusal to suppress the marijuana
reported by Johnson's sister. (EN2)
Johnson argues next that his indictment should have been
dismissed because his right to a speedy trial, as guaranteed in
Alaska Criminal Rule 45, was violated. Specifically, Johnson cites
Rule 45(c)(3), which states that when a new charge arises from the
same criminal episode as a previously filed charge, commencement of
the speedy-trial period "shall be the same as the commencement date
for the original charge." Arguing that his new charge arose from
the same criminal episode as his dismissed charges and that periods
of time that tolled the speedy-trial rule as to his original charges
had no tolling effect on his new charge, Johnson contends that his
new charge was already time barred when it was filed.
As the state points out, however, Johnson's argument
ignores the supreme court's ruling in State v. Williams, 681 P.2d
313, 321 (Alaska 1984), which held:
An event which suspends the 120-day period for
one charge suspends it for all charges arising
out of the same conduct, whether or not they
have been filed when the event takes place.
Any other interpretation would require courts
to supervise a complicated system of consents
and waivers and force prosecutors to file
"pyramid charges."
Williams forecloses Johnson's speedy trial argument.
Johnson next challenges the sufficiency of the evidence
presented to the grand jury. Citing Marion v. State, 806 P.2d 857,
859 (Alaska App. 1991), for the proposition that mere proximity to
contraband cannot establish knowing possession, Johnson claims that
the grand jury evidence did not establish his knowing possession of
the marijuana discovered by his sister. (EN3)
Under Marion, however, evidence of proximity, though
insufficient standing alone, "may nevertheless be combined with
other circumstantial evidence to support an inference of knowing
possession." Id. Here, the grand jury heard evidence establishing
that the disputed marijuana had been found, not just in Johnson's
physical proximity, but rather in an open box left behind in a room
that Johnson had occupied. While occupying the room, Johnson had
been overheard talking repeatedly about a "source" named Tom who
would be bringing him one and one-half pounds of marijuana on the
ferry. Two days before Johnson's sister discovered the marijuana
in Johnson's room, Johnson's nephew had gone to the ferry terminal,
picked up a disembarking passenger named Tom, and taken Tom to
Johnson's bunkhouse; Johnson, meanwhile, had followed his nephew to
the ferry terminal and back to the bunkhouse, as if maintaining
surveillance.
Viewing the totality of the grand jury evidence in the
light most favorable to the state, there was ample basis to support
a finding of knowing possession. Cf. Badoino v. State, 785 P.2d 39,
42 (Alaska App. 1990). Judge Jahnke properly denied Johnson's
motion to dismiss the indictment.
Johnson lastly challenges his sentences as excessive.
Johnson was sentenced simultaneously for both his 1991 cocaine
charge and his 1993 marijuana charge. The 1991 cocaine offense,
misconduct involving a controlled substance in the third degree, is
a class B felony punishable by a maximum of ten years' imprisonment
and by presumptive terms of four and six years for second and
subsequent felony offenders. AS 11.71.030(c); AS 12.55.125(d)(1),
(2). Johnson was nominally a first felony offender in 1991 and was
therefore not subject to a presumptive sentence for the 1991
offense.
The 1993 marijuana offense, misconduct involving a
controlled substance in the fourth degree, is a class C felony
punishable by a maximum of five years' imprisonment and by
presumptive terms of two and three years for second and subsequent
felony offenders. AS 11.71.040(d); AS 12.55.125(e)(1), (2). By
virtue of Johnson's 1993 Oregon conviction for selling cocaine, the
superior court treated Johnson as a second felony offender on the
1993 marijuana charge. (EN4)
Judge Jahnke sentenced Johnson to four years on the
cocaine charge and three years on the marijuana charge; the judge
ordered the sentences to run consecutively, for a composite term of
seven years' incarceration. In addition, the judge restricted
Johnson's eligibility for discretionary parole.
Johnson challenges his individual sentences, contending
that the offenses for which he was convicted involved relatively
small quantities of drugs, that he was a first felony offender when
he committed the 1991 offense, and that he had made substantial
strides toward rehabilitation by the time of his sentencing hearing.
In imposing Johnson's sentences, however, Judge Jahnke
expressly found Johnson's case to be exceptional, despite the
relatively small amounts of drugs reflected in Johnson's two
offenses. Based on Johnson's criminal history and the depth and
persistence of his involvement in drug trafficking, Judge Jahnke
concluded that Johnson was a worst offender whose prospects for
rehabilitation were virtually nil. In relevant part, the judge
said:
Mr. Johnson himself is a most serious
offender. If this particular transaction is
not a most serious transaction, or these two
transactions, and they are not, nevertheless
Mr. Johnson, given his record, given his
ambition in the past and the ambition that he
had in this case, I'm not -- I'm convinced this
was by no means the last deal that he was going
to cut in Ketchikan. He is a most serious
offender, he is a worst offender, because he
has a long history of this kind of conduct,
some of it including very large quantities of
drugs. It has been conduct involving different
kinds of drugs, marijuana and cocaine, and it
is conduct that has gone on for years, and that
at this point in time showed no signs of
abating.
He was -- at the very time that he was
engaging in this conduct in this 1993
transaction he was expressing an intention to
become a drug and alcohol counselor, he was
basically stringing along the police at this
particular time and he didn't know that the
police had a line on him.
His rehabilitative potential is as low as
any offender I've encountered. It is low to
zero, and that is why rehabilitation is not
getting great weight in the Court's sentencing
deliberations, it's relegated to third on the
list out of three levels.
My primary goal is individ -- my primary
goals are individual deterrence and isolation.
Mr. Johnson is not going to be deterred unless
he is -- unless he receives a substantial
sentence, and until that sinks in, the public
will be in great danger as a result of his
activities and he therefore needs to be
isolated.
The record supports Judge Jahnke's findings. At the time
of sentencing, Johnson was 44 years old. Johnson's employment
history is poor. By his own admission, he has spent most of his
adult life smuggling and selling drugs. Although nominally a first
felony offender at the time of his 1991 cocaine sales, Johnson
appears to have been extensively involved in drug trafficking in the
Ketchikan area. According to the presentence report, Johnson was
first convicted in 1978, in Oregon, for unlawfully possessing
marijuana (fifty-one marijuana plants in a greenhouse); he received
a five-year term of probation for the offense and subsequently
violated the conditions of his probation by absconding to Alaska.
In 1982, Johnson was again convicted of (and placed on probation
for) unlawful possession of controlled substances in Oregon; at the
same time, he was convicted of second-degree theft and criminal
possession of rented property. (EN5)
Thus, although the two 1991 Ketchikan sales for which
Johnson was charged involved relatively small quantities of cocaine,
they appear to have been the tip of the iceberg. Moreover, the
contemporaneous Oregon cocaine transaction (for which Johnson was
convicted in March 1993), involved a substantially larger quantity -
- two and one-half ounces. Shortly after committing the 1991
cocaine sales, Johnson fled to California to avoid prosecution in
Alaska and Oregon. In 1992 he was arrested for smuggling more than
one hundred pounds of marijuana across the Mexican border to San
Diego. Upon conviction, Johnson served a substantial sentence in
a federal prison, where he received treatment for substance abuse.
Thereafter, he was released on federal probation, went to Oregon and
was given probation on that state's 1991 cocaine charge, and
returned to Alaska to face his pending charge in Ketchikan. While
on release pending sentencing for the 1991 offense, Johnson became
involved in the misconduct that led to his 1993 arrest. Although
Johnson's activities in 1993 resulted only in his conviction of the
relatively minor offense of possessing marijuana with intent to
deliver, the evidence seized by the police from his room establishes
that his actual involvement with drug trafficking was far more
varied and extensive. (EN6)
We have twice previously considered sentence appeals in
drug cases involving offenders who, like Johnson, committed new
offenses while released on pending drug charges. In Rosa v. State,
633 P.2d 1027 (Alaska App. 1981), Rosa was arrested for possessing
with intent to sell slightly less than four ounces of cocaine.
While released on bail pending disposition of the case, Rosa sold
small quantities of cocaine to an undercover agent and was again
arrested. Id. at 1032; Rosa v. State, 627 P.2d 658, 659 (Alaska
App. 1981). Although Rosa was a first felony offender with no
criminal history or background of alcohol or substance abuse, and
although his cases involved relatively small quantities of cocaine,
we concluded that his commission of the second offense while
released pending disposition of the first justified composite
sentences totalling five years to serve. Rosa, 633 P.2d at 1032-33;
Rosa, 627 P.2d at 659-60.
In Bush v. State, 678 P.2d 423, 425 (Alaska App. 1984),
Bush was charged with selling small quantities of cocaine to an
undercover agent on two occasions; while released on bail, he again
sold a small quantity of cocaine. Later, in advancing an entrapment
defense as to the first two charges, Bush perjured himself. Id.
at 424-25. Upon conviction for the three drug sales and the
perjury, Bush, a first felony offender, received composite sentences
totalling thirteen years' imprisonment with two years suspended.
Id. at 425. Two years of the unsuspended portion of the sentence
were attributable to the perjury charge, nine years were
attributable to the drug charges. In reviewing Bush's sentence on
appeal, we noted that Bush's perjury conviction and history of
misdemeanors distinguished his case from Rosa's. Id. Although we
thought Bush's original sentence of eleven years of unsuspended
incarceration was excessive, we concluded that a composite term
involving eight years to serve -- six for the drug charges and two
for the perjury -- would not be excessive. Id. at 426.
The conduct reflected in Johnson's charges is comparable
to that involved in Bush and Rosa. While Bush and Rosa dealt with
offenders convicted of multiple cocaine sales, whereas one of
Johnson's charges involved possession of marijuana for sale -- a
lesser class of felony -- this distinction seems insignificant in
light of the other controlled substances in Johnson's possession at
the time of his 1993 arrest.
Although Johnson's conduct may be comparable to the
conduct in Bush and Rosa, his case distinguishes itself from those
cases by virtue of Johnson's exceptionally poor background: his
extensive history of substance abuse and drug trafficking, his
status as a second felony offender in the 1993 case, his recent
service of a substantial sentence of imprisonment on a drug charge,
his unsuccessful attempts at rehabilitation in connection with the
prior cases, and his demonstrated willingness to commit a new
offense while simultaneously released on a pending drug charge and
on probation in other drug-related cases.
In our view, these factors support the sentencing court's
characterization of Johnson as a persistent offender whose prospects
for rehabilitation are exceptionally poor. (EN7) These factors
likewise support the conclusion that a composite sentence
substantially exceeding the composite sentences approved in Rosa and
Bush can be justified in Johnson's case. Johnson's composite term
of seven years exceeds by only one year the six years of unsuspended
incarceration we deemed permissible in connection with the
controlled substance convictions in Bush. Having independently
reviewed the entire sentencing record, we conclude that the
sentences imposed below are not clearly mistaken. McClain v. State,
519 P.2d 811, 813-14 (Alaska 1974). (EN8)
The conviction and sentences are AFFIRMED.
ENDNOTES:
1. Indeed, it seems more realistic to fear that suppression in
cases like this might promote, rather than discourage, unlawful
police conduct. If evidence reported to the police by an
independent third party were automatically suppressed whenever its
discovery might not have occurred "but for" a prior unlawful search
that was not sufficiently thorough to uncover all hidden
contraband, courts would simply teach the police that an officer
who risks violating a suspect's rights by undertaking a warrantless
search in a close or marginal case should take care to violate
those rights thoroughly; restraint would go unrewarded.
2. Relying on his claim that the superior court erred in applying
the attenuation doctrine to deny suppression of the marijuana
discovered by his sister, Johnson separately maintains that his
indictment should have been dismissed because it was based on
inadmissible evidence. Our conclusion that Judge Jahnke properly
denied Johnson's motion to suppress this evidence disposes of this
argument.
3. The grand jury must indict a defendant "when all the evidence
taken together, if unexplained or uncontradicted, would warrant a
conviction of the defendant." Alaska Criminal Rule 6(q). On
review, this court must "determine whether the evidence before the
grand jury . . . 'presented a sufficiently detailed account of
criminal activity and the defendant's participation in this
activity' to meet this standard." Marion v. State, 806 P.2d 857,
859 (Alaska App. 1991) (quoting Taggard v. State, 500 P.2d 238, 242
(Alaska 1972)).
4. The record indicates that, in the interim between his 1991 and
1993 Alaska charges, Johnson was convicted of both the Oregon
cocaine charge and a federal charge of smuggling marijuana from
Mexico. The appellate record does not indicate why the federal
offense -- which resulted in a sentence of more than one year in
prison and was thus evidently a felony -- was not treated as
another prior felony for presumptive sentencing purposes. On
appeal, however, the state does not dispute the trial court's
conclusion that Johnson was subject to presumptive sentencing as a
second felony offender on the 1993 marijuana charge. Our
affirmance of Johnson's sentences, which assumes that the superior
court was correct in determining Johnson's presumptive sentencing
status, makes it unnecessary to resolve this issue.
5. In addition, Johnson was convicted in 1989 for unlawfully
engaging in commercial fishing activities in Ketchikan.
6. For purposes of sentencing Johnson for his 1991 and 1993
offenses, Judge Jahnke found it permissible to consider the
totality of the drugs seized from Johnson's room, including the
drugs that the court had suppressed in connection with prosecution
of the original 1993 charges. See Elson v. State, 633 P.2d 292,
300-01 (Alaska App. 1981), aff'd, 659 P.2d 1195 (Alaska 1983)
(exclusionary rule ordinarily does not require suppression of
illegally seized evidence in a sentencing hearing). Johnson does
not dispute this ruling on appeal.
7. See State v. Graybill, 695 P.2d 725, 729-30 (Alaska 1985).
Johnson insists that the sentencing court erred in ignoring
uncontroverted evidence indicating that he had made genuine
progress toward resolving his longstanding substance abuse problem
since his most recent arrest. The sentencing court, however, was
not bound to accept Johnson's evidence of rehabilitation, even if
it was undisputed. See Kirby v. State, 748 P.2d 757, 767 (Alaska
App. 1987). There is ample evidence in the record to support Judge
Jahnke's conclusion that Johnson was manipulative and that his
recent rehabilitative efforts were likely insincere or temporary.
8. Johnson separately argues that Judge Jahnke erred in
restricting his eligibility for discretionary parole. However,
since Judge Jahnke articulated a reasonable basis for concluding
that the parole restriction was necessary, we find no merit to
Johnson's claim of error. See Jackson v. State, 616 P.2d 23, 25
(Alaska 1980); Lawrence v. State, 764 P.2d 318, 321 (Alaska App.
1988).
