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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SHELTON L. LANDON, )
) Court of Appeals No. A-5753
Appellant, ) Trial Court No. 3PA-94-924 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1524 - April 18, 1997]
______________________________)
Appeal from the Superior Court, Third Judicial
District, Palmer, Beverly W. Cutler, Judge.
Appearances: John C. Pharr, Anchorage, for
Appellant. W. H. Hawley, Assistant Attorney
General, Office of Special Prosecutions and
Appeals, Anchorage, and Bruce M. Botelho,
Attorney General, Juneau, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
The police executed a search warrant at Shelton L.
Landon's property and discovered that he was growing a substantial
amount of marijuana there. Landon was subsequently convicted of
fourth-degree misconduct involving a controlled substance under
three different theories (manufacturing more than one ounce of
marijuana with intent to deliver, possession of more than one pound
of marijuana, and using his dwelling for distribution of marijuana),
AS 11.71.040(a)(2), (a)(3)(F), and (a)(5).
Landon appeals his conviction, arguing that the search
warrant for his property was issued without probable cause. He also
contends that, when he took the stand at his trial, the prosecuting
attorney was allowed to cross-examine him outside the scope of the
issues raised by his testimony on direct examination. As explained
below, we reject both of these contentions and we therefore affirm
Landon's conviction.
Landon also appeals his sentence. We conclude that the
superior court must reconsider its sentencing decision.
The search warrant
On March 29, 1994, an anonymous caller contacted the
Matanuska-Susitna Crime Stoppers hotline and reported that Landon
was operating a marijuana growing operation in his home.
The caller gave the address of Landon's home and provided
detailed directions on how to get there. He (EN1) stated that
Landon lived in a light blue, one-story house that had both front
and rear entrances, with a fence around the front porch, and with
no curtains on the windows. The caller said that Landon owned two
adult rottweilers and three rottweiler puppies; he kept these dogs
chained at the house.
Finally, the caller stated that there was a second
building at the back of the house, not visible from the roadway,
which contained Landon's marijuana growing operation. According to
the caller, Landon would be harvesting between 200 and 300 marijuana
plants in late April or early May. The caller claimed to have seen
these plants six to eight weeks ago, when they were two to three
feet tall.
The caller explained that he knew all this because he had
"worked a couple of growing seasons for Landon, water[ing] plants
and even clean[ing] his house". The caller apparently decided to
reveal this information to the authorities because he was angry at
Landon for "how [he] was treated".
State Trooper Jeannine Santora was assigned to investigate
the caller's information. She contacted other officers of the State
Troopers' Drug Enforcement Unit, who confirmed that Landon owned
property in the same subdivision that the caller had described;
these officers also told Trooper Santora that Landon was on
probation. Santora then contacted the Department of Corrections
probation office in Palmer; the probation officer confirmed that
Landon owned rottweilers, and Santora also learned that Landon drove
a black BMW with tinted windows.
Using the directions provided by the caller, Santora and
another state trooper drove to Landon's house, which matched the
description given by the caller: the house was one-story, it was
colored light blue, and it had a fence around the front porch. The
troopers observed two rottweiler puppies on the front porch. The
troopers saw no curtains on the windows, although some side windows
had red coverings.
The troopers could see a plywood building in back of the
house. A carport was attached to this rear building. Several blue
tarps were visible on the ground outside the rear building, and a
six- or eight-wheeled vehicle was parked in the carport. The
troopers did not see a black BMW at the residence.
A few days later, Santora checked with the Mat-Su Borough
to see who was listed as the owner of the property she had visited.
Landon was listed as the owner.
Santora checked Landon's criminal history and discovered
that he had been convicted in 1985 of possession of dangerous drugs;
this conviction was set aside in 1992. Landon had also been
arrested in 1991 for possession of marijuana, a charge that was
later dismissed.
Santora next contacted the Matanuska Electric Association
(MEA) and inquired about the electrical usage at Landon's residence.
She was informed that the electricity was in Landon's name and that
the usage was above average.
Based on this information, Santora sought a warrant to
search Landon's property. There were two witnesses at the probable
causing hearing: Trooper Santora (who testified to the facts set
out above), and John R. Bogue, the Energy Services Manager for MEA,
who testified about Landon's electricity usage.
Bogue testified that, according to MEA records, the
electricity usage at Landon's residence was consistently over 200
kilowatt hours per day, regardless of changes in the temperature.
This level of usage had been maintained for four consecutive months,
beginning in December 1993. In contrast, previous customers at the
same address had used between 6 and 35 kilowatt hours per day,
depending on the season and whether the residence was actually
occupied. For instance, the average electricity use at that
residence during the winter of 1992-93 (when a different person had
been the subscriber) was 23 to 35 kilowatt hours per day.
Bogue explained that 25 to 35 kilowatts per day would be
the expected residential usage level for a house that did not use
electric heat. However, if electricity was the source of heat, this
level of usage would be "extremely low". The testimony at the
hearing indicated that Landon might well have electric heat:
Santora testified that she had not noticed a chimney at Landon's
residence, or any gas hook-up. Bogue told the magistrate that he
did not think Landon's subdivision had access to natural gas.
However, Bogue told the magistrate that even if Landon's
house had electric heat, Landon's pattern of electricity usage was
still unusual because the level of usage did not vary according to
outside temperatures. Bogue testified that, if Landon's high usage
of electricity was due to the use of electric heat, one would expect
to see a major decrease in the amount of electricity used at the
house as temperatures increased during the spring months. Landon's
level of usage remained invariant.
Bogue testified that, in his experience, the remaining
explanation for such high electricity usage was indoor marijuana
cultivation. Bogue explained that marijuana growing operations tend
to use high intensity lighting systems comprised of 1,000-watt bulbs
(plus ballasts that consume another 200 watts per bulb). Generally,
these growing lights are kept on for 12 to 18 hours each day, thus
consuming a great deal of electricity. Bogue told the magistrate
that he had encountered past instances of similar unexplained high
electricity usage, and in every case but one the explanation had
turned out to be marijuana cultivation.
Magistrate David Zwink found that there was probable cause
to believe that a marijuana growing operation was housed at Landon's
residence, and he therefore issued a search warrant for the
property. (EN2) Landon asserts that the facts recited above do not
constitute probable cause, and therefore all evidence seized
pursuant to the warrant should be suppressed.
When (as in Landon's case) the State seeks to establish
probable cause for a warrant by relying on hearsay information, the
sufficiency of that hearsay is judged using the Aguilar/Spinelli
test. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723
(1964); Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21
L.Ed.2d 637 (1969); State v. Jones, 706 P.2d 317, 324-25 (Alaska
1985). Under this test, a court must examine the basis of the
hearsay informant's knowledge and the hearsay informant's
credibility.
Landon concedes that the amount of detail furnished by the
anonymous informant was sufficient to justify the inference that the
informant possessed personal knowledge of what he told the police.
Thus, the first prong of the Aguilar/Spinelli test is satisfied.
Spinelli, 393 U.S. at 416-17; 89 S.Ct. at 589; 21 L.Ed.2d at 643-44;
Draper v. United States, 358 U.S. 307, 312-13; 79 S.Ct. 329, 333;
3 L.Ed.2d 327, 331-32 (1959); Schmid v. State, 615 P.2d 565, 574-75
(Alaska 1980). The real question in this case is whether the
informant's credibility was sufficiently established.
One of the ways an informant's credibility can be
established is through evidence that he or she "is among those
persons whom courts presume to be credible" þ generally, police
officers or "citizen informants". Stam v. State, 925 P.2d 668, 670
(Alaska App. 1996). An informant's status as either a "police
informant" or a "citizen informant" for Aguilar/Spinelli purposes
"turns on the nature of the informant's involvement with the
incident being investigated and his or her motivation for coming to
the authorities". Gustafson v. State, 854 P.2d 751, 756 (Alaska
App. 1993). The informant in Landon's case shares the qualities of
both a "citizen" and a "police" informant.
The informant in this case was anonymous. However, as
this court noted in Effenbeck v. State, 700 P.2d 811, 814 (Alaska
App. 1985), courts often treat anonymous informants as "citizen
informants" because the informant's anonymity practically ensures
that they will not receive pecuniary reward or official concessions
in exchange for their information.
The informant in this case also declared that he decided
to report Landon's illegal activities because he had previously
helped Landon cultivate the marijuana and Landon had treated him
badly. While the informant's self-declared ill-will toward Landon
might in some cases counsel skepticism of his report, here the
informant explained that his animosity toward Landon stemmed from
his experience as Landon's employee þ thereby conceding his own
involvement in the criminal activity. Moreover, the informant
provided a detailed description of the criminal enterprise. If the
police followed the informant's tip and uncovered the marijuana
growing operation, it was at least conceivable that the
investigative trail would thereafter lead back to the informant.
These factors can be interpreted as bolstering the informant's
credibility. See State v. Bianchi, 761 P.2d 127, 130-31 (Alaska
App. 1988) (stating that an informant's detailed statements against
penal interest satisfied the second prong of Aguilar/Spinelli).
Thus, while the informant in this case may not be the
traditional "citizen informant" who needs only minimal corrobora-
tion, see Erickson v. State, 507 P.2d 508, 517 (Alaska 1973), the
magistrate could reasonably extend more credibility to this
informant than one would to the traditional "police informant".
However, such an informant's credibility would still need to be
corroborated before his tip could constitute the probable cause
necessary to support a search warrant.
The second prong of Aguilar/Spinelli can be satisfied when
the police independently corroborate portions of the informant's
tip. Carter v. State, 910 P.2d 619, 623-24 (Alaska App. 1996); Stam
v. State, 925 P.2d at 670. The police need not corroborate every-
thing the informant says. In particular, the police need not
independently corroborate the informant's ultimate incriminating
assertion (here, that Landon was surreptitiously growing marijuana
inside a building). Schmid, 615 P.2d at 576-77. However, it is not
sufficient for the police simply to corroborate innocuous, readily
available public information, such as the fact that a suspect lives
at a particular address. See Jones, 706 P.2d at 325; Stam, 925 P.2d
at 671 (police corroboration of an informant's description of "the
location and physical layout of [a suspect's] property" was held
insufficient to establish the informant's credibility); Carter, 910
P.2d at 624 ("corroboration of public facts or wholly innocuous
details" cannot meet the Aguilar/Spinelli requirement).
Here again, Landon's case presents a borderline situation.
Leaving aside the State's evidence of Landon's electricity usage
(which we will discuss next), the state troopers were able to verify
many details of the informant's tip, but not the incriminating
assertion that Landon was conducting a marijuana cultivation
operation in the rear building. It might be argued that all of
these corroborated details were merely "public information",
information that could be gleaned by any attentive observer who
visited Landon's property. See Stam, 925 P.2d at 671 (police
corroboration of the location and physical layout of the suspect's
property did not satisfy the second prong of Aguilar/Spinelli).
Nevertheless, the corroborated detail in this case went well beyond
Landon's address and the physical layout of the buildings on his
property. The troopers corroborated details such as the curtainless
windows and the rottweiler puppies. While not enough in themselves
to establish the informant's credibility, these details can
legitimately figure in the Aguilar/Spinelli calculus.
We now turn to the evidence of Landon's electricity usage.
In two recent cases, this court has ruled that evidence of the level
of electricity usage at a suspect's property did not sufficiently
corroborate allegations that the property was being used for the
cultivation of marijuana. Lloyd v. State, 914 P.2d 1282, 1289-1290
(Alaska App. 1996), and Carter v. State, 910 P.2d 619, 625-26
(Alaska App. 1996). We conclude, however, that Landon's case is
distinguishable from Lloyd and Carter.
In Carter, the police presented evidence of the
defendant's "unusual consumption" of electricity. 910 P.2d at 622.
However, aside from the defendant's electrical records, the police
presented only "conclusory, anonymous tips of drug-related
activity". Id. at 626. We held that this combination was not
sufficient to establish probable cause. Id.
Lloyd presented a more sophisticated issue: whether
electrical records might be used "for the more modest purpose of
corroborating the credibility of an informant who provides a non-
conclusory tip". 914 P.2d at 1290. In Lloyd, the informant's tip
was more detailed, but the only corroborating evidence provided by
the police was evidence of a "raw statistical increase in electrical
use" at the defendant's property. Id. at 1289. We recognized that
evidence of electricity usage "[could] be of great benefit in ...
establish[ing] informant credibility in cases like Lloyd's." Id.
at 1290. However, we cautioned that in order for such evidence to
have corroborative force,
the [utility] records must be accompanied by
information that places them in context and
lends them meaning. Devoid of factual context
or explanation, a mere showing of increased
electrical consumption cannot satisfy Aguilar-
Spinelli's corroboration requirement.
Lloyd, 914 P.2d at 1290.
Landon's case presents an instance in which the
informant's tip was substantial, not conclusory, and the evidence
of Landon's electricity usage was fleshed out sufficiently to
corroborate the informant's tip. The testimony of John Bogue
established that the electricity was in Landon's name, that Landon's
level of electricity usage at the property consistently exceeded 200
kilowatts per day, and that previous occupiers of the property had
used much less electricity (about one-sixth of that amount). Bogue
conceded that similar high levels of usage would be expected if
Landon's buildings were heated by electricity, but one would not
expect the same pattern of usage þ i.e., consistent levels of 200
kilowatts per day, month after month, regardless of changes in the
outside temperature.
Bogue explained some of the mechanics of indoor marijuana
cultivation, and why a marijuana growing operation would lead to
the level of electricity consumption shown at Landon's property.
Bogue further testified that, based on his past experience with
similar high levels of electricity consumption, it was quite likely
that the explanation was marijuana cultivation.
In short, Bogue's testimony provided a reasoned basis for
drawing conclusions from the level of electricity usage at Landon's
property. Bogue's testimony did not exclude innocent explanations
for Landon's high consumption of electricity. However, "probable
cause" does not require an affirmative negation of all possibilities
consistent with innocence. Carter, 910 P.2d at 625-26. By
providing a context for evaluating Landon's high level of
electricity consumption, Bogue's testimony raised a reasonable
inference that the anonymous informant's tip was credible. This
inference, in conjunction with the other factors noted above,
provided sufficient corroboration of the informant's tip to satisfy
the second prong of the Aguilar/Spinelli test, thus establishing
probable cause to believe that Landon was using his property to grow
marijuana. We therefore uphold the search warrant for Landon's
property.
Landon's second argument on appeal is that he was
subjected to improperly broad cross-examination when he took the
stand at his trial. Originally, Landon had waived his right to
testify; his attorney presented the defense case without calling
Landon. However, after the State rested its rebuttal case, Landon's
attorney sought the trial judge's permission for Landon to take the
stand in surrebuttal, and the judge allowed Landon to testify.
Landon testified that, even though he was the owner of the
property, he did not reside there. Landon asserted that he rented
out both of the buildings (the house and the rear building) to a man
who gave his name as "Charles Brown" but who was actually named
Jerry Rose.
On cross-examination, the prosecutor asked Landon if he
had ever gone into the rear building while it was rented to
Brown/Rose, or if he had ever touched the equipment that was put
in that rear building. Landon answered that he had not. The
prosecutor then asked Landon how his fingerprint had come to be
found on one of the grow lamps in the rear building. The prosecutor
also asked Landon to explain how a speeding ticket issued to Landon
and a monthly planner with Landon's name on it had come to be found
in the front house. The prosecutor also asked Landon to explain why
Landon's dogs were at the house, and why the telephone was listed
in his name.
On appeal, Landon argues that many of these questions were
beyond the scope of his testimony on direct. They were not. Landon
testified that he neither occupied nor used the buildings on his
property, but instead rented these buildings to someone else.
Landon presented this testimony to show that he was not aware of,
and did not participate in, the marijuana growing operation that was
found on his property. On cross-examination, the prosecutor asked
Landon to address various circumstances that seemed to be
inconsistent with Landon's claim that he did not use those
buildings. These questions were proper.
Under Alaska Evidence Rule 611(b), cross-examination is
"limited to the subject matter of the [witness's testimony on]
direct examination and matters affecting the credibility of the
witness". As applied to defendants in criminal cases who take the
stand (i.e., those who waive their right not to testify), this rule
is generally construed to mean that a defendant is subject to cross-
examination "only to the extent necessary to fairly test the
statements made [during] direct examination and [the] inferences
that might be drawn from such statements". Stephen A. Saltzburg,
Michael M. Martin, and Daniel J. Capra, Federal Rules of Evidence
Manual (6th ed. 1994), Rule 611, pp. 949-950. In Landon's case, the
prosecutor's questions were manifestly relevant to testing Landon's
assertions that he did not occupy or use the buildings on his
property.
For these reasons, we affirm Landon's conviction for
fourth-degree misconduct involving a controlled substance. We now
turn to Landon's sentence appeal.
Landon's offense is a class C felony. AS 11.71.040(d).
Landon, as a second felony offender, was subject to a 2-year
presumptive term. AS 12.55.125(e)(1). Superior Court Judge Beverly
W. Cutler found two aggravating factors under AS 12.55.155(c):
(c)(16) þ that Landon's conduct was designed to obtain substantial
pecuniary gain, while the risk of prosecution and punishment for
this conduct was slight; and (c)(17) þ that Landon's offense
constituted one of a series of criminal offenses committed in
furtherance of illegal business activities from which Landon derived
a major portion of his income.
Based on these two aggravating factors, Judge Cutler added
a suspended year's imprisonment to Landon's sentence; that is, she
sentenced Landon to 3 years' imprisonment with 1 year suspended.
On appeal, Landon asserts that there was no evidentiary basis for
the two aggravators, and thus he should have received the unadjusted
presumptive term (2 years to serve).
With regard to aggravator (c)(16), the record shows that
Landon had over 175 marijuana plants which, when dried, would yield
six or seven pounds of marijuana. Moreover, the prosecutor asserted
(without contradiction) that if those plants had been allowed to
mature, they would have yielded over 40 pounds of marijuana. The
prosecutor also asserted (again, without contradiction) that the
price for a pound of marijuana was $3,600.00. Thus, Landon could
expect a harvest worth more than $160,000.00. This amount of money
clearly qualifies as "substantial pecuniary gain".
The question then becomes whether Landon's risk of
prosecution and punishment was slight. Judge Cutler noted that a
substantial number of people in the Matanuska Valley (upward of four
dozen, according to Judge Cutler) are prosecuted each year for
growing marijuana for commercial purposes. However, Judge Cutler
found that, "notwithstanding [this] fact" (i.e., the substantial
number of prosecutions), the risk of prosecution for commercial
cultivation of marijuana was still slight because sales of marijuana
are "done in private, and [the marijuana] is sold to willing
customers".
Judge Cutler's finding is problematic in two ways. n
people are prosecuted each year for this crime, Judge Cutler appears
to have implicitly found that hundreds of people are growing
marijuana for commercial purposes in the Matanuska Valley, and that
these people go undetected by a network of undercover officers, paid
informants, and special law enforcement units set up to investigate
the commerce in illegal drugs. The record in this case contains no
information to support such a conclusion.
Second, the legislative history of AS 12.55.155(c)(16)
suggests that the legislature had a different category of offense
in mind when it enacted aggravator (c)(16). Aggravating factors
(c)(16) and (c)(17) were added to AS 12.55.155 by 1980 SLA ch 102,
sec. 40. The commentary to this section of the session law declares
that the legislature intended these two aggravators to be applied
to "white-collar" criminals. See 1980 Senate Journal, Supplement
No. 44 (May 29, 1980), p. 25. "White-collar" crimes are generally
defined as offenses involving embezzlement, forgery, or fraud. (EN3)
One of the main reasons there is a low risk of prosecution and
punishment for these crimes is that the victims often do not realize
that a crime has occurred.
Landon's crime did not involve fraud or deceit, nor did
Landon surreptitiously steal anyone's property. That is, Landon's
offense is not within the normal definition of "white-collar" crime.
It is true that commerce in marijuana generally takes place in
private between two consenting persons; assuming neither of the
participants is a police agent, the participants are unlikely to
report the crime to the authorities. However, despite this inherent
impediment to the reporting and prosecution of marijuana sales, the
legislative history of aggravator (c)(16) suggests that the
aggravator was aimed at a different category of crime. (EN4)
A sentencing judge's findings regarding aggravating and
mitigating factors are to be affirmed unless they are shown to be
clearly erroneous. Lepley v. State, 807 P.2d 1095, 1099 n.1 (Alaska
App. 1991). However, it is the State's burden to prove aggravating
factors by clear and convincing evidence. AS 12.55.155(f). After
examining the record in this case, we conclude that the record fails
to support a finding of aggravator (c)(16).
We now turn to aggravator (c)(17). Aggravator (c)(17) is
established if the State shows that the defendant's crime was "one
of a continuing series of criminal offenses", and if the State
further shows that this continuing series of offenses was "committed
in furtherance of illegal business activities from which the
defendant derive[d] a major portion of [his or her] income".
Examining each of these elements in turn, we conclude that neither
was proved.
Landon was convicted, in essence, of growing marijuana for
sale. In its sentencing argument, the State suggested that Landon's
operation had been going on for some time. It is unclear, however,
whether a single longstanding growing operation would qualify as
"one of a continuing series of criminal offenses".
The State also suggested that there was at least some
evidence that Landon had operated other growing operations at other
locations. Such evidence could conceivably establish that Landon's
present growing operation was one of a series of similar offenses.
However, Judge Cutler made no finding with respect to the State's
assertion. Indeed, she made no finding at all with respect to this
first element of aggravator (c)(17).
With regard to the second element (that Landon derived a
major portion of his income from growing marijuana), the prosecutor
at sentencing pointed to a substantial body of evidence that Landon
enjoyed a level of affluence that was apparently inexplicable by his
employment history. However, Judge Cutler made no findings with
respect to the State's assertions. Instead, she declared that
[the] proof of the pudding ... is the fact that
here we [have] Mr. Landon [represented by] a
public defender after making all this money,
and making it illegally. Yes, it clearly shows
that most of his income was from [drug-
dealing]. If he had significant other income,
he wouldn't need a public defender here right
now.
A sentencing judge treads perilous ground when she relies
on the fact that a defendant has obtained counsel at public expense
as affirmative evidence of the defendant's criminality. Arrest and
pre-trial imprisonment are quite capable of disrupting the finances
of both the guilty and the innocent, and the costs of private
counsel in a felony trial are beyond the financial means of many,
be they guilty or innocent. A sentencing judge can not assume,
simply because a defendant accused of a commercial crime is unable
to afford private counsel, that a major portion of the defendant's
income must be attributable to criminal activities. The mere fact
that Landon was represented by publicly-funded counsel did not
constitute clear and convincing evidence of Landon's past
participation in a continuing criminal enterprise; similarly, this
fact did not constitute clear and convincing evidence that a major
portion of Landon's income was derived from a continuing criminal
enterprise.
For these reasons, we vacate the superior court's finding
of aggravators (c)(16) and (c)(17). Landon is entitled to be re-
sentenced. If the State again attempts to establish aggravator
(c)(16) or aggravator (c)(17), that renewed litigation must be
governed by this opinion.
Landon's conviction is AFFIRMED, but his sentence is
VACATED and this case is remanded to the superior court for re-
sentencing. We do not retain jurisdiction of this case.
ENDNOTES:
1. The record does not reveal the caller's sex; the use of "he"
is arbitrary.
2. The troopers executed the search warrant shortly before 8:00
p.m. on the evening of May 4, 1994. Upon entering the rear
building, they discovered a marijuana growing operation, with 177
marijuana plants in their budding stage. They also discovered
three 1,000-watt halide lamps, set on a rotating, motorized arm to
simulate the effect of the sun, as well as two stationary lights
over the plants. The estimated weight of the plants, after drying,
was between six and seven pounds.
3. White-collar crime: "a crime [such] as fraud, embezzlement,
etc., committed by a person in business, government, or a
profession in the course of occupational activities." Webster's
New World Dictionary of American English (Third College Edition,
1988), p. 1523.
4. We note a further potential problem in Judge Cutler's ruling.
Judge Cutler found that aggravator (c)(16) applied to marijuana
sales because the people who know about these sales are unlikely to
report the sales to the authorities. Although Judge Cutler was
thinking of drug offenses, this same rationale might easily be
employed to increase the punishment for violations of any unpopular
law þ any law that the community believed was unfair or represented
an improper intrusion into citizens' private lives.
Using this rationale, the government might argue that "the
risk of prosecution and punishment" for a particular offense "is
slight" whenever citizens often refuse to cooperate with official
efforts to investigate that offense, or whenever grand juries often
decline to indict people for that offense, or whenever trial juries
often refuse to convict people of that offense. While it is
perhaps conceivable that the legislature intended aggravator
(c)(16) to be used to enhance the punishment for defendants who
violate unpopular laws, we are reluctant to assume such a
legislative intent. Certainly, no such intent appears in the
commentary to aggravator (c)(16).
