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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BILAL MUSTAFOSKI, )
) Court of Appeals No. A-6118
Appellant, ) Trial Court No. 4BE-91-283 Cr
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1576 - February 27, 1998]
______________________________)
Appeal from the Superior Court, Fourth Judicial
District, Bethel, Mark I. Wood, Judge.
Appearances: Rex Lamont Butler, Anchorage, for
Appellant. Cynthia L. Herren, Assistant Attorney General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Bilal Mustafoski was convicted of two counts of third-
degree misconduct involving a controlled substance (sale of
cocaine), AS 11.71.030(a)(1), and one count of third-degree
misconduct involving weapons (felon in possession of a concealable
firearm), former AS 11.61.220(a)(1). He appeals his convictions on
various grounds. Mustafoski contends that the State violated his
right to a speedy trial under Alaska Criminal Rule 45. He also
contends that the indictment against him is invalid because the
State failed to present exculpatory evidence to the grand jury, and
because the State relied on the testimony of a paid informant who
arguably had an interest in the outcome of the case. Additionally,
Mustafoski argues that the trial judge should have granted him a
mistrial when a witness referred to the fact that Mustafoski was a
known drug dealer, and when this same witness made a remark that
might be interpreted as a reference to Mustafoski's prior trial.
Finally, Mustafoski argues that the trial judge abused his
discretion when he limited Mustafoski's cross-examination of the
State's informant. For reasons explained in this opinion, we affirm
Mustafoski's convictions.
Mustafoski's Rule 45 Claim
Mustafoski was originally indicted in April 1991. He went
to trial and was convicted, but this court reversed his convictions
in Mustafoski v. State, 867 P.2d 824 (Alaska App. 1994). We
remanded Mustafoski's case to the superior court for further
proceedings on the indictment that is, for retrial. The effective
date of this remand was February 16, 1994. Under Alaska Criminal
Rule 45(c)(5) and Criminal Rule 40(a), the 120-day time period for
bringing Mustafoski to trial started running on the following day
(February 17, 1994). See Nickels v. State, 545 P.2d 163, 165
(Alaska 1976).
Mustafoski's trial did not start until March 13, 1995
almost thirteen months later. However, on May 5, 1994 (less than
three months after we remanded this case to the superior court),
Mustafoski told the court that he intended to change his plea. A
change of plea hearing was calendared for May 11th, but the hearing
was continued for a month, at Mustafoski's request, so that he could
obtain more information regarding how his plea would affect his
immigration status. On June 9th, Mustafoski asked for another
continuance, again so that he could investigate the immigration
consequences of his plea. At a status hearing on July 18th,
Mustafoski told the court that he still needed more time to try to
resolve the case. This time, the court set the case for trial; the
scheduled trial date was September 12th, with a calendar call set
for September 8th. (Apparently, the parties were to inform the
court on September 8th whether the case would in fact be resolved
short of trial.) Mustafoski filed a written waiver of Rule 45
through September 8th.
When Mustafoski told the court on May 5th that he intended
to change his plea, Rule 45 was satisfied. For Rule 45 purposes,
Mustafoski's announcement that he intended to change his plea "had
the same effect ... as an entry of plea". Minch v. State, 934 P.2d
764, 768 (Alaska App. 1997), quoting Morris v. State, 734 P.2d 1012,
1014 (Alaska App. 1987). That is, the running of Rule 45 was
terminated on May 5, 1994.
The next event of consequence occurred on September 8,
1994, when Mustafoski told the superior court that he now intended
to go to trial. In their briefs to this court, both Mustafoski and
the State of Alaska assume that Rule 45 commenced running again on
September 8th from where it left off that whatever the Rule 45
total was on May 5, 1994 (when Mustafoski announced that he intended
to change his plea), September 9, 1994 would be that day plus one.
We hold, instead, that Rule 45 started anew when Mustafoski
announced his renewed intention to go to trial and that September
9, 1994 was therefore Day 1 for purposes of calculating Rule 45.
Our decisions in Minch and Morris establish that, for Rule
45 purposes, a defendant's announcement that he or she intends to
plead guilty or no contest is the same as the defendant's actual
entry of such a plea. In either situation, the Rule 45 calculation
stops because Rule 45 is satisfied.
Under Rule 45, if the defendant formally changes his or
her plea, then withdraws the plea and demands a trial, Rule 45 is
started over at Day 1. See Criminal Rule 45(c)(6): "If the
defendant is to be tried after withdrawal of a plea of guilty or
nolo contendere previously entered, the time for trial shall run
from the date of the order permitting the withdrawal." Consistent
with our rulings in Minch and Morris, we conclude that the policy
of Rule 45(c)(6) must govern Rule 45 calculations whenever
defendants announce that they intend to enter a plea, then later
change their minds and again decide to go to trial. That is, it
should make no difference whether Rule 45 is restarted by the
withdrawal of a formally entered plea or by the announcement that
the defendant no longer intends to change his or her plea. In
either event, the Rule 45 clock should restart at Day 1.
We therefore hold that the Rule 45 calculation in
Mustafoski's case began again at Day 1 on September 9, 1994 the
day after Mustafoski notified the court that there would be no
change of plea and that he was going to trial. On November 29,
1994, Mustafoski filed a motion to dismiss the indictment. This
motion tolled the running of Rule 45. See Rule 45(d)(1). The
superior court held an evidentiary hearing on this motion and
ultimately denied Mustafoski's motion on February 15, 1995. Thus,
even assuming that the Rule 45 clock ran unabated from September 9,
1994 (the day after Mustafoski announced that there would be a
trial) until November 29, 1994 (the day Mustafoski filed his motion
to dismiss the indictment), only 82 days had elapsed as of February
15, 1995 (the day the court denied Mustafoski's motion).
Nineteen days later, on March 6, 1995, Mustafoski filed
a second motion to dismiss the indictment. This motion, which again
tolled the running of Rule 45, was still pending when Mustafoski's
trial began on March 13th. This means that the Rule 45 clock had
run for only 19 more days a total of 101 days when Mustafoski
was brought to trial.
Because the 120 days allowed by Criminal Rule 45(b) for
bringing a defendant to trial had not expired, the superior court
correctly ruled that Mustafoski's right to speedy trial under Rule
45 had not been violated. We recognize that Superior Court Judge
pro tempore Mark I. Wood employed different reasoning when he denied
Mustafoski's motion, but we are authorized to affirm the superior
court on any legal ground revealed by the record. Torrey v.
Hamilton, 872 P.2d 186, 188 (Alaska 1994); Ransom v. Haner, 362 P.2d
282, 285 (Alaska 1961); Millman v. State, 841 P.2d 190, 195 (Alaska
App. 1992); Russell v. Anchorage, 626 P.2d 586, 588 n.4 (Alaska App.
1981).
Mustafoski's attacks on his indictment
Mustafoski argues that his indictment should have been
dismissed because the State relied on the testimony of a paid
informant, someone who collected thousands of dollars in reward
money for generating cases against various drug dealers and
bootleggers. Mustafoski contends that the use of such an informant
is an "outrageous[] ... violat[ion] [of] the public trust" and a
violation of his right to due process. However, Mustafoski cites
no legal authority for this proposition.
Ordinarily, given such inadequate briefing, Mustafoski's
argument would be waived. See Petersen v. Mutual Life Ins. Co. of
New York, 803 P.2d 406, 410 (Alaska 1990). However, this court
recently held that the use of a paid informer does not violate due
process, even when the informer's fee is contingent on the outcome
of the case. Jacobs v. State, Alaska App. Opinion No. 1575
(February 20, 1998), slip opinion at pp. 10-13. We therefore
address Mustafoski's contention and reject it.
Mustafoski also argues that his indictment should have
been dismissed because the State failed to present exculpatory
evidence to the grand jury. See Frink v. State, 597 P.2d 154, 164
(Alaska 1979). However, the evidence that Mustafoski points to is
merely evidence that might be used to impeach the testimony of the
informer or to otherwise cast doubt on the State's case. The
State's affirmative duty to present exculpatory evidence to the
grand jury extends only to evidence that tends to negate the
defendant's guilt in and of itself. State v. McDonald, 872 P.2d
627, 639 (Alaska App. 1994). We therefore reject Mustafoski's
argument.
Mustafoski's motion for mistrial
During his trial, Mustafoski asked the superior court to
grant a mistrial on two separate grounds. The first ground was that
a witness, Duane Anaruk, referred to the fact that Mustafoski was
a known drug dealer. Anaruk, who worked as a cab driver, was the
police informant who purchased the cocaine from Mustafoski. The
issue arose during the defense attorney's cross-examination of
Anaruk.
The defense attorney questioned Anaruk as to whether
Anaruk had previously used or seen cocaine. The defense attorney
then continued:
DEFENSE ATTORNEY: Now, as far as a source
for cocaine, you knew where you could buy cocaine in Bethel, didn't
you?
ANARUK: Well, there's like I said,
driving a cab, you hear a lot of things. And, at that time, Benny
[Mustafoski] was was a known individual. If you wanted coke, go
see Benny.
Mustafoski's attorney did not object to Anaruk's answer. Instead,
he followed up on it: the defense attorney asked Anaruk if he had
targeted Mustafoski because of Mustafoski's reputation as a cocaine
dealer.
A little later, the defense attorney asked for a mistrial,
arguing that Anaruk's answer had prejudiced the fairness of the
proceedings. The trial judge denied the motion, noting that
Anaruk's answer had been elicited by the defense attorney and that
it was a fair response to the question posed by the defense
attorney. The judge offered to give the jury a curative
instruction, but Mustafoski did not pursue this offer.
This court faced a similar situation in Hines v. State,
703 P.2d 1175 (Alaska App. 1985). During the defense attorney's
cross-examination of a government witness, the witness mentioned the
defendant's prior convictions. Id. at 1178. Despite the potential
prejudice of this information, we upheld the trial court's refusal
to declare a mistrial. This court relied on the fact that the
information had been elicited by the defense, that the witness's
answer had been responsive to the question posed by the defense
attorney, and that the trial judge had given a curative instruction.
Id. See also Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980)
(upholding a trial judge's refusal to grant a mistrial after the
defendant's status as a probationer was inadvertently mentioned).
For similar reasons, we uphold the trial judge's refusal to grant
a mistrial in Mustafoski's case.
Mustafoski raised a second issue in his motion for
mistrial. The trial judge had ordered the parties not to refer to
Mustafoski's first trial as a "trial", but rather as a "hearing" or
a "proceeding". Mustafoski claimed that Anaruk had violated this
order during his testimony.
The issue arose during the defense cross-examination of
Anaruk. The defense attorney noted that Anaruk had been living in
California but had then decided to return to Alaska and cooperate
with the authorities by testifying against Mustafoski. The
following colloquy ensued:
DEFENSE ATTORNEY: So what was it that was
said or done that convinced you to come back on board with them?
ANARUK: Nothing. All I know is that I
got a call[;] I was talking with my mom, and [she] said that they
were, the district attorney's office and the state troopers' office
[were] looking for me. And they said it was important. So I called
and I talked to them, and they said that this trial was coming up
again, and [they] asked me if I would want to come up [to Alaska],
and I said yes.
Mustafoski argues that Anaruk's comment was a violation
of the trial court's protective order. This is not clear. Someone
with knowledge that Mustafoski had been tried once before might
interpret Anaruk's answer (that "this trial was coming up again")
as a reference to the fact that this was Mustafoski's second trial.
However, the jury assumedly did not know that Mustafoski had been
tried once before. To them, Anaruk's answer would not necessarily
suggest that this was Mustafoski's second trial; the answer could
also be interpreted as meaning that Mustafoski's trial had been
rescheduled from a prior date.
Moreover, even if the jury had inferred from Anaruk's
answer that this was Mustafoski's second trial, this alone would not
significantly prejudice Mustafoski. The real danger of prejudice
lay in the jury's finding out that Mustafoski had previously been
convicted; Anaruk's answer gave no hint of this. The trial judge
offered to instruct the jury that they should not consider
Mustafoski's prior trial in their deliberations, nor speculate as
to the outcome of that trial. Again, Mustafoski did not pursue this
offer. Under these facts, we hold that the trial judge did not
abuse his discretion when he denied Mustafoski's motion for
mistrial. Noah v. State, 887 P.2d 981, 983 (Alaska App. 1995).
Did the trial judge improperly restrict Mustafoski's
cross-examination of Anaruk?
Mustafoski argues that Judge Wood improperly restricted
the defense cross-examination of Anaruk in three areas. First,
Judge Wood allowed Mustafoski to cross-examine Anaruk regarding the
fact that Anaruk had a criminal conviction, but the judge would not
allow Mustafoski to elicit the nature of Anaruk's offense. Second,
Judge Wood allowed Mustafoski to cross-examine Anaruk regarding his
use of drugs on the day before and the day of his cocaine purchase
from Mustafoski, and to cross-examine Anaruk regarding his
opportunity to purchase drugs before he engaged in the transactions
with Mustafoski, but the judge would not allow Mustafoski to ask
Anaruk about his general drug use, or about any drug use that
occurred after his transactions with Mustafoski. Finally, Judge
Wood would not allow Mustafoski to cross-examine Anaruk regarding
the fact that Anaruk, acting as a police informant, had drunk
alcohol with some people and then had reported these people to the
police for illegal sale of alcohol.
Although a defendant's right to cross-examine their
accusers is fundamental to our system of justice, "trial judges
retain wide latitude ... to impose reasonable limits on ... cross-
examination based on concerns about ... harassment, prejudice,
confusion of the issues, ... or interrogation that is repetitive or
only marginally relevant". Wood v. State, 837 P.2d 743, 746-47
(Alaska App. 1992), quoting Delaware v. Van Arsdall, 475 U.S. 673,
679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674, 683 (1986).
The decision in Wood guides us in resolving Mustafoski's
first claim. In Wood, the defendant wished to cross-examine a
witness about that witness's prior juvenile record in order to
establish the witness's bias. The witness had been charged as a
juvenile with sexual abuse of a minor; in disposition of that case,
the witness was subjected to a "conduct agreement" (apparently, the
equivalent of informal probation). Id. at 745. The trial judge
precluded all cross-examination regarding the witness's juvenile
record and the "conduct agreement". Id. We reversed the trial
judge's decision. However, we noted that even though a trial judge
could not completely preclude cross-examination on this subject, the
judge could reasonably have limited cross-examination. We suggested
that the witness's bias could have been demonstrated without
divulging the specific nature or the details of the juvenile
offense: instead, cross-examination could have been limited to the
fact that the witness had been involved in delinquent behavior, that
this behavior amounted to a felony, and that the witness was subject
to a "conduct agreement". Id. at 748.
In the present case, Anaruk had been charged with a felony
(sexual abuse of a minor), but he was ultimately convicted of two
misdemeanors. Mustafoski was entitled to elicit these facts and
argue that Anaruk might be biased in favor of the State after
receiving a lenient disposition of the charge. However, Judge Wood
was properly concerned about the possibility that, once the jury
heard that Anaruk had been charged with sexual abuse of a minor,
they might become prejudiced against Anaruk and distracted from
their duty to decide Mustafoski's case on the evidence.
The judge adopted the approach suggested in Wood. He
allowed Mustafoski to establish that Anaruk had been charged with
a class C felony and that this charge was subsequently reduced to
two misdemeanors. This information enabled Mustafoski to argue, and
the jury to infer, that Anaruk was biased in favor of the State
after having received a lenient disposition. We thus uphold Judge
Wood's ruling on this issue.
Mustafoski's second claim is that he should have been able
to cross-examine Anaruk about his general, on-going use of drugs.
Mustafoski argues that if Anaruk used drugs on an on-going basis,
he must have had ready access to drugs. According to Mustafoski,
proof of Anaruk's ready access to drugs would bolster Mustafoski's
contention that Anaruk obtained the cocaine from someone other than
Mustafoski. Mustafoski further asserts that anyone who uses drugs
on an on-going basis would be more likely to know how to hide drugs
from the police knowledge that would help Anaruk bring concealed,
already-purchased drugs to his transactions with Mustafoski.
Judge Wood had to balance the arguable relevancy of
Anaruk's drug use against the rule that "a witness's drug use or
addiction is not admissible to prove [the witness's] general
unreliability" or bad character. Moreau v. State, 588 P.2d 275, 282
n.20 (Alaska 1978). The record reveals that Judge Wood understood
the potential relevance of Anaruk's drug use and tailored
Mustafoski's cross-examination to accommodate defense interests,
while at the same time preventing Mustafoski from simply attacking
Anaruk's character.
Judge Wood allowed Mustafoski to elicit evidence of
Anaruk's drug use on the two days preceding his controlled purchase
of cocaine from Mustafoski. Judge Wood additionally allowed
Mustafoski to elicit evidence of Anaruk's prior use of cocaine and
Anaruk's knowledge of cocaine sources prior to his transactions with
Mustafoski. Judge Wood did not allow questioning regarding Anaruk's
use of drugs other than cocaine, or his use of drugs after April 10,
1991 (the date of the controlled purchase from Mustafoski); the
judge ruled that such evidence would be either collateral or
irrelevant. (Moreover, Judge Wood found that Mustafoski's evidence
of Anaruk's prior use of LSD was based solely on hearsay and was
therefore inadmissible on this separate ground as well.)
Having examined the record, we conclude that Judge Wood
did not abuse his discretion when he set these limits on
Mustafoski's cross-examination of Anaruk concerning Anaruk's drug
use. Under Judge Wood's ruling, Mustafoski was able to elicit the
most significant aspects of Anaruk's drug use. The evidence
excluded by Judge Wood's ruling was, at best, only marginally
relevant. Wood, 837 P.2d at 746-47.
Mustafoski's final contention is that he should have been
able to cross-examine Anaruk concerning an incident in which Anaruk
allegedly drank bootleg alcohol with some people, then later
informed the police that these people had engaged in the illegal
sale of alcohol. Judge Wood ruled that, because the incident in
question occurred after Anaruk's purchase of cocaine from
Mustafoski, Anaruk's conduct during this incident was a collateral
matter and not particularly relevant to the issues at Mustafoski's
trial.
Questions pertaining solely to a witness's general
credibility are usually deemed collateral. Jackson v. State, 695
P.2d 227, 230 (Alaska App. 1985). In general, a party cannot cross-
examine a witness on collateral matters to show that the witness is
an immoral person and thus unworthy of belief. See Sheakley v.
State, 644 P.2d 864, 872 (Alaska App. 1982) (citing United States
v. Lester, 248 F.2d 329, 334 (2nd Cir. 1957)). Further, a trial
judge has considerable discretion to limit cross-examination aimed
solely at attacking a witness's general credibility. See Evans v.
State, 550 P.2d 830, 837 (Alaska 1976).
The only apparent relevance of Mustafoski's proposed
cross-examination was to portray Anaruk as a police informant who
had little conscience someone who would party with bootleggers
and then bust them. We conclude that Judge Wood did not abuse his
discretion when he ruled that evidence of this incident lacked
sufficient relevance to be admitted.
Conclusion
The judgement of the superior court is AFFIRMED.
