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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, )
) [No. 1534 - May 30, 1997]
Appellee. )
______________________________)
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
1 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.2
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"
? 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 ? 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 corroboration, 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 everything
the informant says. In particular, the police need not
independently corroborate the informant's ultimate
incriminating assertion (here, that Landon was surrepti-
tiously 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 ? 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) ? 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) ? 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. First, by asserting
that the risk of prosecution is slight despite
the fact that four dozen 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, ? 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.3 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
primarily at a different category of crime.4
We recognize that, even though the
legislature's commentary to aggravator (c)(16)
focuses on white-collar crimes, other cases
potentially may arise outside the white-collar
context in which the nature of the offense and
the defendant's conduct in committing the
offense make it possible for the State to
prove the elements of this aggravator. Be
that as it may, the record in Landon's case
does not contain clear and convincing evidence
that Landon faced only a slight risk of
prosecution and punishment for his commercial
cultivation of marijuana. Given our
conclusion that the State failed to present
clear and convincing evidence of aggravator
(c)(16) in Landon's case, we need not decide
the extent to which a sentencing judge might
be justified in applying aggravator (c)(16)
outside the province of white-collar crimes.
We hold only that the sentencing court was
clearly erroneous in finding this aggravator
applicable to Landon. Lepley v. State, 807
P.2d 1095, 1099 n.1 (Alaska App. 1991).
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.
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 ? 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).
Mary ? I've done the changes to this paragraph.
?25? 1534
