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Murray v. State (11/3/00) ap-1698
Murray v. State (11/3/00) ap-1698
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
BRUCE L. MURRAY, )
) Court of Appeals No. A-7210
Appellant, ) Trial Court No. 3AN-S97-6963 CR
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1698 November 3, 2000]
)
Appeal from the Superior Court, Third Judicial
District, Anchorage, Milton M. Souter and Larry D. Card, Judges.
Appearances: Rex Lamont Butler, Rex Lamont
Butler and Associates, Anchorage, for Appellant. W. H. Hawley, Jr.,
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.
STEWART, Judge.
Bruce L. Murray appeals his convictions for second-degree
misconduct involving weapons, [Fn. 1] third-degree misconduct
involving weapons, [Fn. 2] and two counts of fourth-degree
misconduct involving a controlled substance. [Fn. 3] Murray raises
several claims in this appeal. First, Murray argues that he was in
Miranda [Fn. 4] custody during police questioning at Third Avenue
and Ingra Street in Anchorage and his statement should be suppressed
because he was not advised of his rights. Second, Murray argues
that, even if he was not in custody at Third and Ingra, all the
evidence that the police discovered after an earlier statement in
his motel room that did violate Miranda must be suppressed because
the evidence was the "fruit" of that illegality. Third, Murray
argues that the superior court erred by upholding a search warrant
of his home. Fourth, Murray argues that the police entry into his
motel room violated the Fourth Amendment, and that all evidence
acquired after that entry should be suppressed. Fifth, Murray
argues that the superior court should have granted a judgment of
acquittal on the count of fourth-degree misconduct involving
controlled substances which charged him with maintaining a place
used for keeping or distributing controlled substances. Finally,
Murray argues that Judge Card should have granted a judgment of
acquittal on the charge of second-degree misconduct involving
weapons for possessing a weapon during a felony drug offense. For
the reasons expressed below, we reject all of Murray's claims except
the last. On that claim, we vacate Murray's conviction and remand
for further proceedings.
Facts and proceedings
On August 13, 1997, shortly after 5:00 a.m., an anonymous
caller telephoned the Anchorage Police Department and reported that
there was a dead body in Room 222 of the Mush Inn, an Anchorage
motel. Anchorage Police Officers Kevin Iverson and Steven Hebbe
responded to the call. When the officers arrived at the Mush Inn,
the door to Room 222 was open. The officers told a security guard
on the scene and Murray, the occupant of Room 222, that they were
responding to the dead-body report. The officers asked to enter the
room to look for the dead body. Murray consented. While the
officers were checking the room, they told Murray to sit down on the
bed with his hands in view. Someone at the Mush Inn front desk
called the room to ask Murray about payment for the room charges.
Murray asked to leave to take care of his bill, but the officers
told Murray he had to wait until they were finished searching. The
officers found no body. The officers questioned
Murray while they were in the room, but they did not advise him of
the Miranda warnings or tell him he was free to leave. The officers
questioned Murray for 20-30 minutes. Murray told the officers that:
(1) he was on felony probation for a prior drug offense (Officer
Iverson ran a check that confirmed this); (2) he had only recently
returned to the room; (3) his housemate and girlfriend, Jeannie Joy,
and two other people had been in the room earlier; (4) Joy was a
drug user, but he did not know whether she had drugs; (5) he had
given Joy money to buy cocaine; (6) he had consumed some cocaine,
and a urinalysis for cocaine would probably be positive; and (7) Joy
still had the cocaine and was driving his Chevy Blazer around town.
The officers asked to search the room for drugs and Murray
agreed to a search of the room for that purpose. The officers found
a single-serving plastic alcohol bottle with a hole cut in it that
could be used to smoke crack cocaine.
The officers departed to look for Joy. They left Murray
behind. The officers hoped to recover the Blazer for Murray and to
search it for drugs.
Officer Hebbe spotted Murray's Blazer and stopped it at
Third Avenue and Ingra Street. Joy and another person were inside
the Blazer. Officer Iverson returned to the Mush Inn and told
Murray that the police found his Blazer and asked Murray for his
consent to search the Blazer. Murray gave that consent. Officer
Iverson relayed the consent to Officer Hebbe.
Meanwhile, Joy was talking with the police and reported
(1) that there was marijuana in the Blazer; (2) that Murray had
given her the marijuana to sell; (3) that Murray grew marijuana; and
(4) that Murray owned a firearm and had a prior drug conviction.
The officers searched the Blazer and found marijuana and a crack
pipe. About this time, Murray drove to Third and Ingra in his truck
and parked behind the line of vehicles.
The officers questioned Murray about Joy's claims. Murray
admitted that he had given marijuana to Joy to sell and that he had
about a quarter of a pound of marijuana and a handgun at his home.
Murray drove to his home and the officers followed. The
officers asked Murray to consent to a search of his home. At first,
Murray agreed, but when the officers presented him with a consent-
to-search form he asked for an attorney.
Because Murray withdrew his consent, the officers obtained
a search warrant for Murray's residence. During the execution of
the warrant, the police found the following items: (1) a bag
containing 170.9 grams (approximately 6 ounces) of "bud" marijuana
in a living room closet; (2) a screening tin (used to separate "bud"
from "shake") and a gram scale in the kitchen; (3) marijuana residue
in a bedroom drawer and in the screening tin; (4) a loaded .44
magnum handgun inside a "fur-lined case" in the bedside table
drawer; and (5) a gun cleaning kit and boxes of ammunition in a
bucket in the bedroom. In the handgun case, the officers later
found a marijuana "bud."
The grand jury indicted Murray for the following offenses:
one count of fourth-degree misconduct involving a controlled
substance for possession of one ounce of marijuana with intent to
deliver; another count of fourth-degree misconduct involving a
controlled substance for maintaining a dwelling for keeping or
distributing controlled substances; one count of second-degree
misconduct involving weapons for possession of the .44 magnum
handgun during the commission of a felony drug offense; one count
of third-degree misconduct involving weapons for being a felon in
possession of a firearm capable of being concealed on one's person;
[Fn. 5] and another count of third-degree misconduct involving
weapons for being a convicted felon and living in a dwelling knowing
that a firearm was present in the dwelling.
Murray moved to suppress the evidence acquired in Room
222, including his statements to the police, claiming that the
police violated the Fourth Amendment and did not advise him of his
Miranda rights. He also claimed that evidence obtained after the
police left the room should be suppressed as the fruit of this
police illegality. Following an evidentiary hearing, Superior Court
Judge Milton M. Souter found that Murray was in custody for purposes
of Miranda in his motel room. Because Murray was not given Miranda
warnings, Judge Souter suppressed the statements Murray made in Room
222. However, Judge Souter refused to suppress any statements after
the police left Room 222 or any physical evidence. Judge Souter
found that Murray voluntarily consented to the officers' entry into
and search of his motel room. He further found that the weight of
the evidence indicated that the police went to Room 222 due to a
report of a dead body, and not on a "ruse." Finally, Judge Souter
found that Murray voluntarily consented to the search of his Blazer.
Murray filed a motion for reconsideration and a
supplemental motion for reconsideration. Murray sought
reconsideration of the court's order denying suppression of the
evidence that the police developed after leaving the Mush Inn.
Judge Souter invited a response from the State and the State
opposed the motion. Judge Souter denied Murray's motion for
reconsideration.
Murray also filed a motion to quash the search warrant and
the evidence found after the police executed the warrant. Murray
claimed that the search warrant could not stand because the court
suppressed Murray's Mush Inn statement and because the remaining
evidence was not sufficient to support the issuance of the warrant.
Judge Souter denied that motion.
The case was reassigned to Superior Court Judge Larry D.
Card and the parties agreed to a bench trial. Officers Iverson and
Hebbe testified. During trial, Judge Card permitted Murray to raise
a suppression claim that he had not raised before trial. In this
new claim, Murray contended that he was in custody at Third and
Ingra for purposes of Miranda, and, because he had not been given
any warnings, his statement should be suppressed. Murray testified
in support of this suppression claim. Judge Card denied Murray's
motion finding that Murray was not in custody at Third and Ingra and
his statement was voluntary. At the conclusion of the trial, Judge
Card found Murray guilty on all counts.
When Murray appeared before Judge Card for sentencing, the
State conceded that the two counts of third-degree misconduct
involving weapons should merge for sentencing purposes. Ultimately,
Judge Card dismissed one count and entered conviction on the
remaining count.
Murray was a second felony offender for purposes of
presumptive sentencing. Judge Card imposed the presumptive 4-year
term for second-degree misconduct involving weapons. [Fn. 6] Judge
Card imposed 2-year presumptive terms on the remaining counts. [Fn.
7] The sentences in all counts were imposed concurrently.
Discussion
Did the police violate the Fourth Amendment when they
entered Murray's motel room?
Murray claims that the police violated his Fourth
Amendment rights when they entered Room 222. Murray argues that
Judge Souter's finding that he consented to this entry was
erroneous. Whether a defendant consented to a search is a question
of fact to be determined by the trial court from the totality of the
circumstances in each case. [Fn. 8] We must accept the superior
court's findings on consent unless they are clearly erroneous. [Fn.
9]
After an evidentiary hearing, Judge Souter found that the
police responded to the report of a dead body in Room 222 and
knocked at the entry to the room. Judge Souter found that Murray
tacitly consented to the police entry and ratified his consent when
they were a few feet in the room. We have examined the record and
conclude that substantial evidence supports Judge Souter's findings.
Therefore, his conclusion that Murray consented to the entry and
search of Room 222 is not clearly erroneous.
Was Murray in custody when questioned by the police at
Third and Ingra and were his statements voluntary?
Murray argues that the superior court should have
suppressed statements he made at Third and Ingra because he was
subjected to custodial interrogation and was not advised of his
Miranda rights. Murray also argues his statements were involuntary.
Judge Card denied this claim during trial.
Judge Card considered the factors identified in Hunter v.
State [Fn. 10] to analyze whether Murray was in custody for purposes
of Miranda. [Fn. 11] Judge Card found that Murray went on his own
to Third and Ingra to try to get his Blazer back. The officers and
Murray talked in the street in front of Murray's other vehicle in
a non-threatening, conversational tone. The officers imposed no
restraint on Murray. Murray was not mistreated nor deprived of
anything. When the officers discussed the marijuana with Murray,
he did not attempt to leave or stop the discussion. After the
discussion at Third and Ingra, Murray left in his vehicle.
Judge Card also found that Murray was experienced in the
criminal justice system because he had an earlier felony conviction.
He understood his rights because he asked for a lawyer later. There
was no evidence that Murray was mentally incompetent or under the
influence of alcohol. Judge Card found that Murray appeared to be
intelligent and articulate. He also found that Murray was not
influenced by his probationary status. These findings support Judge
Card's conclusion that Murray was not in custody for purposes of
Miranda. Judge Card also cited Aningayou v. State [Fn. 12] for the
analysis of a statement's voluntariness [Fn. 13] and decided that
Murray's statement was voluntary.
Judge Card's factual findings are supported by substantial
evidence in the record. In light of these findings, we agree with
Judge Card's conclusion that, under the totality of the
circumstances, Murray was not in custody when questioned at Third
and Ingra. From our own review of the record, we also agree with
Judge Card's conclusion that Murray's statement was voluntary.
Should evidence obtained after the Miranda violation be
suppressed?
Next, Murray argues that the superior court should have
suppressed the evidence that the police obtained after the Room 222
Miranda violation Joy's statements to the police, the marijuana
that the police found in Murray's Blazer, and Murray's statement to
the police at Third and Ingra. Murray claims that the police
obtained all this evidence because of the Miranda violation.
Murray's statements at Third and Ingra
The State urges us to follow Oregon v. Elstad [Fn. 14] to
uphold the superior court's denial of Murray's motion to suppress
the Third and Ingra statement. However, this case is
distinguishable from Elstad. The superior court found that Murray
was not in custody at Third and Ingra. Because Murray was not in
custody, the police did not need to give him Miranda warnings.
Therefore, this case does not present the central issue decided in
Elstad: whether a statement that followed a Miranda violation is
admissible if the police gave proper Miranda warnings before the
later statement. [Fn. 15]
Moreover, we conclude that if we apply pre-Elstad law, as
we did in Halberg v. State, [Fn. 16] any possible taint had
dissipated. [Fn. 17] Under this law, the government first must show
that a defendant's later statement was voluntary and, if the
defendant was in custody when questioned, that the police advised
the defendant of Miranda rights that the defendant freely and
voluntarily waived. [Fn. 18] If the State meets this initial
threshold, we examine the totality of the circumstances to decide
if the defendant's following statement was "sufficiently an act of
free will to purge the primary taint." [Fn. 19]
This analysis requires that we consider a number of
factors, including whether Miranda warnings were given before the
later statement, the time between the initial illegality and the
later statement, the presence of intervening circumstances, and the
purpose and flagrancy of the official misconduct. [Fn. 20] Other
factors that can be considered include the defendant's physical and
mental condition at the time of the later statement, whether the
defendant remained in custody or was at liberty during this
interval, whether the defendant could have contacted a lawyer,
family or friends during this interval, whether the later interview
took place at a different location, whether the defendant's
interrogators were the same officers who committed the prior illegal
act, whether the evidence obtained from the prior illegal act
affected the defendant's decision to submit to a subsequent
interview, whether the police used lies or trickery to influence the
defendant's decision, and whether there were other intervening
events that affected the defendant's decision. [Fn. 21] The
decision whether a defendant's statement is tainted by a prior
illegality is ultimately a question of law that a reviewing court
independently determines, accepting the trial court's findings on
historical fact unless they are clearly erroneous. [Fn. 22]
As discussed earlier, Judge Card found that Murray drove
to Third and Ingra on his own initiative and left in his own
vehicle. He was not mistreated by police and did not try to leave
or stop the interview. Murray was experienced in the criminal
justice system and understood his rights. Judge Souter also found
that the police were not trying to "scam" Murray by locating his
vehicle. The police asked Murray for consent to search the Blazer
and Murray consented without any tricks or pressure from the police.
The questioning at Room 222 did not provide the police
with information that directly inculpated Murray in a potential new
offense. Murray admitted that he had consumed cocaine supplied by
Joy, but, as the record below indicates, the officers expected that
they were looking at a potential cocaine case against Joy, whom the
police thought was a drug addict. Judge Souter found that Murray
believed that "things were going his way . . . . [and] that he
believed in his own mind that whatever the police found in his car,
because the police were helping him out at this point, that that
would get attributed to the other people in the car."
After stopping the Blazer, the police talked to Joy about
Murray's cocaine allegations. Joy raised the subject of marijuana
and told the police where it was in the Blazer. Joy told the
officers that Murray had given her the marijuana to sell and that
Murray operated marijuana grows and had marijuana and a handgun at
his home. The officers asked Murray about these new disclosures.
Murray denied operating marijuana grows but admitted the other
allegations.
The facts support the court's conclusion that Murray's
statement was sufficiently insulated from the Miranda violation to
escape its taint. After the officers left Murray at the Mush Inn,
he was at liberty and could contact anyone he wished. The
questioning by the same police who were at Room 222 occurred on the
street in front of Murray's truck. Murray could have left at any
time. The topic of discussion, marijuana, was new. The police did
not trick Murray or lie to him. To the extent that Murray's
statements in Room 222 were inculpatory, they did not incriminate
Murray on the criminal charges that he ultimately faced. When the
officers limited Murray's freedom they were investigating the report
of a dead body and were trying to find out from Murray why he would
be subjected to an apparent hoax. After the discussion in Room 222
was over, the officers left to help recover Murray's Blazer.
Based on these facts, it does not appear that Murray's
statements at Third and Ingra were significantly influenced by his
questioning in Room 222. He did not "let the cat out of the bag"
in the first interview because he never said anything about
marijuana or the handgun. [Fn. 23] Instead, he related the problems
he had with Joy around cocaine. Examining the totality of the
circumstances, we conclude that there was a break in the "stream of
events ... sufficient to insulate the [later] statement from the
effect of all that went before." [Fn. 24] Thus, the superior court
did not err when it denied Murray's motion to suppress his statement
at Third and Ingra as derivative evidence of the Miranda violation.
Joy's statements and the marijuana in the Blazer
The police learned of Joy's identity and the fact that she
was driving Murray's Blazer during the questioning in Room 222 that
Judge Souter suppressed. Joy did not testify at trial nor were
Joy's statements admitted as substantive evidence.
The police used the information they learned from Joy to
question Murray at Third and Ingra. Murray's statements from that
interview that the marijuana found in the Blazer was his and that
he had marijuana and a handgun at his home were admitted at trial.
Even if we apply pre-Elstad law as we did in Halberg,
Joy's statements are sufficiently insulated from the Miranda
violation to be free of its taint. The police were looking for the
Blazer to help Murray recover it. Murray gave the police
information that led them to believe that they might have a cocaine-
related case against Joy. When the police stopped the Blazer, Joy
provided new information that led the police to the marijuana in the
Blazer. Joy also told the police about the marijuana and the
handgun at Murray's house. Although Murray argues on appeal that
Joy was coerced and induced to speak to the officers, this claim
finds no support in the record and was not raised in the superior
court.
The police were acting to help Murray when they stopped
the Blazer. The topics that Joy raised the marijuana, where the
marijuana could be found, and the handgun at Murray's house were
topics that Murray did not mention in the suppressed statement in
Room 222. As we discussed above, the police questioned Murray in
Room 222 because they were sent there on a reported death. When
their initial contact with Murray was over, they left to help him
recover his Blazer.
Evaluating the totality of the circumstances, we conclude
that the police did not exploit the Miranda violation to obtain
Joy's statements and there was a sufficient break between the
Miranda violation and Joy's statements to insulate this evidence
from any taint. We conclude that this same analysis applies
to the marijuana recovered from Murray's Blazer. The police did not
know of the marijuana when they talked with Murray in Room 222.
They learned of the existence and location of the marijuana from
Joy. The police did not exploit the Miranda violation to seize the
marijuana. Again we conclude there was a sufficient break between
the Miranda violation and the seizure of the marijuana in the Blazer
to insulate this evidence from the taint of the Miranda violation.
Finally, Murray argues that we should apply a presumption
of taint whenever evidence is obtained by the government after a
Miranda violation. But procedurally no additional presumption of
taint is required. As discussed in Brown and Halberg, the
government already must show that if evidence is potentially tainted
by an earlier illegality, it must be sufficiently insulated from the
taint of the illegality to be admissible.
Was the search warrant supported by probable cause?
In the superior court, Murray attacked the search warrant
by claiming that Joy's hearsay statements to the police were not
adequately corroborated under Aguilar-Spinelli [Fn. 25] and that
Murray's suppressed statement was used in the application for the
warrant. The State opposed Murray's motion by pointing out that
Murray's admissions at Third and Ingra were also presented to the
magistrate and themselves established probable cause to search
Murray's residence. The superior court denied Murray's motion.
In this appeal, Murray abandons his Aguilar-Spinelli claim
and raises a new attack on the search warrant. Murray now argues
that Murray's statement from Third and Ingra, Joy's hearsay
statement, and the evidence of the marijuana found in his Blazer
should be excised from an analysis of the warrant because they are
fruits of the Room 222 Miranda violation.
Murray argues that if all the derivative evidence that he
identifies is excised from the application, the remaining evidence
is not sufficient to support the search warrant. But Murray did not
make this argument in the superior court. Because Murray did not
make this argument in the superior court, it was not preserved. [Fn.
26]
Furthermore, as we decided above, Murray's Third and Ingra
statement, Joy's statement, and the marijuana found in the car were
not tainted by the Miranda violation in Room 222. We conclude from
our review of the record that the search warrant was supported by
probable cause.
Did the State present sufficient evidence to support the
conviction for fourth-degree misconduct involving controlled
substances?
Murray argues that insufficient evidence supports his
conviction for fourth-degree misconduct involving controlled
substances maintaining a place used for keeping or distributing
controlled substances. [Fn. 27] Murray argues as he did in the
superior court that there was insufficient evidence indicating
that his residence was used continuously for possession or
distribution of marijuana. Murray also claims that there was no
connection made between the nearly six ounces of marijuana found in
the living room closet, the marijuana residue found in his bedroom
drawer, and a "screening tin" police found in the kitchen. Murray
suggests that these residues could have been from personal use of
marijuana.
The State argues that Judge Card made a fair inference of
continuity from the fact that a screening tin and a gram scale were
found at Murray's residence. The State further argues that
continuity is also fairly inferred from the handgun that was found
in its case with a bud of marijuana. According to the State, the
handgun is "another badge of a person who deals in drugs,"
particularly since marijuana was located in its case.
In Dawson v. State, [Fn. 28] this court interpreted AS
11.71.040(a)(5) and held that the words "keep" and "maintain" in the
statute require the State to demonstrate continuity or duration,
rather than an isolated incident of possession or distribution. [Fn.
29] We stated as follows:
[T]o establish a violation of AS
11.71.040(a)(5), the state must prove that the accused, while
knowingly controlling or knowingly having authority to control
property of the type listed in the statute, personally used the
property or knowingly permitted another to use it for the purpose
of keeping or distributing prohibited controlled substances in a
manner that amounts to a felony under Alaska law. The state need
not prove that the property was used for the exclusive purpose of
keeping or distributing controlled substances, but such use must be
a substantial purpose of the users of the property, and the use must
be continuous to some degree; incidental use of the property for
keeping or distributing drugs or a single, isolated occurrence of
drug-related activity will not suffice. The purpose with which a
person uses property and whether such use is continuous are issues
of fact to be decided on the totality of the evidence in each case;
the state is not required to prove more than a single specific
incident involving the keeping or distribution of drugs if other
evidence of continuity exists.[ [Fn. 30]]
As to the first element outlined in Dawson (that Murray
knowingly controlled or knowingly had the authority to control the
type of property listed in the statute), Judge Card found that
utility and other bills located on a table in the home were Murray's
bills, indicating that it was his residence, "not a place he just
happened to be in for a night or two." As to the second element
outlined in Dawson (that Murray used the property for the purpose
of keeping or distributing prohibited controlled substances in a
manner amounting to a felony), Judge Card found that Murray had
violated AS 11.71.040(a)(1) by possessing marijuana with the intent
to deliver. However, Judge Card found that there was not sufficient
evidence to indicate that Murray permitted another person to conduct
business from his home. As to the third element outlined in Dawson
(that the use of the residence for such purpose was continuous to
some degree, not merely incidental nor a single, isolated occurrence
of drug-related activity), Judge Card found that the nearly six
ounces of marijuana found in the living room closet was a
"substantial amount of marijuana." Judge Card also discussed the
fact that marijuana was found throughout the house. Judge Card
further found that "Murray was readily willing to transfer, deliver,
[and] give" the marijuana to others, and had in fact given marijuana
to Joy.
Given these findings and the evidence in this case, we
conclude that a fair-minded fact-finder could conclude that the
State proved this charge beyond a reasonable doubt. [Fn. 31]
Sufficiency of evidence for second-degree weapons
misconduct
Murray also moved for a judgment of acquittal on second-
degree weapons misconduct possession of a firearm during the
commission of a felony drug offense arguing that the State
presented insufficient evidence to demonstrate a connection between
his alleged drug offense and the possession of a firearm. Murray
argued that the offense charged requires "some active use or
deployment of the firearm with [and] in conjunction with the drug
felony offense." Judge Card denied the motion for acquittal and
convicted Murray on this count.
Alaska Statute 11.61.195(a)(1) provides that "[a] person
commits the crime of misconduct involving weapons in the second
degree if the person knowingly . . . possesses a firearm during the
commission of an offense under AS 11.71.010 11.71.040[.]" Murray
argues that under this court's decision in Collins v. State, [Fn.
32] the State did not prove a sufficient nexus between Murray's
possession of a firearm and his commission of a felony drug offense.
We issued the Collins opinion after Murray's bench trial.
In Collins, the evidence suggested that the defendant
dealt drugs in a residence where firearms were found. [Fn. 33] We
held that "AS 11.61.195(a)(1) requires proof of a nexus between a
defendant's possession of the firearm and the defendant's commission
of the felony drug offense." [Fn. 34] Even though we assumed that
the State presented enough evidence at Collins's trial to prove that
nexus, we concluded that Collins's conviction was flawed because the
trial jury was not instructed on the nexus requirement, and,
therefore, did not find that the State proved this element. [Fn. 35]
Murray argues that the State offered no independent proof
of when the firearm was obtained or why. This, Murray argues, left
the State with only the bare seizures of the marijuana and the gun
from the same house with no evidence that the firearm had any
relation to the six ounces of marijuana in the house. Murray also
points to the fact that the marijuana was in the living room closet,
while the firearm was in a bedroom drawer.
However, the police also found a marijuana bud in the case
with the handgun. The State argues that the presence of the
marijuana in the gun case is strong evidence of a connection between
Murray's drug offense and possession of the gun. Furthermore, the
State points out that Judge Card found a connection between Murray's
possession of the handgun and a felony drug offense. Judge Card
found that:
[I]n this case, the place where the drugs were
located was also the place where the firearm was located. It's not
like the firearm was here in Anchorage and the drugs were in Kenai
or Denali or in the back of a car. And so there was a logical
correlation, [despite] the statements that there had been . . . a
burglary[.] One stash of marijuana is a valuable item, and people
have been known to break into homes and places where they are kept;
. . . committing robberies, committing murders to get those drugs
. . . and any money. So, the firearm was a necessary component.
And since it was knowingly possessed, based on the statements of Mr.
Murray, and it was during the commission of a felony drug offense
as found in Count I and Count II, the defendant is hereby guilty of
Count III of knowingly possessing a firearm during the commission
of a felony drug offense.
However, Judge Card did not have the benefit of the Collins decision
when he entered his findings. It does not appear from our review
of Judge Card's findings that he discussed whether the State had
proved the nexus that we discussed in Collins. Judge Card was the
sole fact-finder in Murray's non-jury trial. Therefore, we will
remand the case to Judge Card for him to address whether the State
proved the nexus element discussed in Collins.
Conclusion
Murray's conviction for second-degree misconduct involving
weapons (possession of a firearm during the commission of a felony
drug offense) is VACATED and the case is REMANDED for further
consideration of that count. In all other respects, the judgment
of the superior court is AFFIRMED.
Judge Card shall enter supplemental findings on the charge
of second-degree misconduct involving weapons. If Judge Card again
concludes that Murray is guilty of this charge, he shall transmit
his findings to this court within seventy-five days. Murray shall
have thirty days from the transmission of those findings to submit
a supplemental memorandum addressing Judge Card's decision. The
State shall then have thirty days to submit its supplemental
memorandum. Finally, Murray shall have twenty days to submit a
reply memorandum. However, if Judge Card finds that the State did
not prove this charge in light of Collins, he shall notify this
court directly. We retain jurisdiction.
FOOTNOTES
Footnote 1:
AS 11.61.195, a class B felony.
Footnote 2:
AS 11.61.200(a)(10), a class C felony.
Footnote 3:
AS 11.71.040(a)(2) and (a)(5), class C felonies.
Footnote 4:
See Miranda v. Arizona, 384 U.S. 436 (1966).
Footnote 5:
AS 11.61.200(a)(1).
Footnote 6:
See AS 12.55.125(d)(1).
Footnote 7:
See AS 12.55.125(e)(1).
Footnote 8:
See Phillips v. State, 625 P.2d 816, 817 (Alaska 1980).
Footnote 9:
See Brown v. State, 684 P.2d 874, 880 (Alaska App. 1984).
Footnote 10:
590 P.2d 888 (Alaska 1979).
Footnote 11:
See id. at 895.
Footnote 12:
949 P.2d 963 (Alaska App. 1997).
Footnote 13:
Id. at 966-67.
Footnote 14:
470 U.S. 298 (1985).
Footnote 15:
See id. at 307-09.
Footnote 16:
903 P.2d 1090 (Alaska App. 1995).
Footnote 17:
Id. at 1097-100.
Footnote 18:
See id. at 1094.
Footnote 19:
Brown v. Illinois, 422 U.S. 590, 602 (1975) (quoting Wong Sun
v. U.S., 371 U.S. 471, 486 (1963)); Halberg, 903 P.2d at 1094.
Footnote 20:
See Brown, 422 U.S. at 603-04.
Footnote 21:
See Halberg, 903 P.2d at 1098.
Footnote 22:
See Dulier v. State, 511 P.2d 1058, 1060 (Alaska 1973);
Halberg, 903 P.2d at 1095.
Footnote 23:
See United States v. Bayer, 331 U.S. 532, 540-41 (1947)
(describing the "cat-out-of-the-bag" circumstance as a situation
where a defendant, having once confessed through application of
unlawful police procedures, may be operating under coercive pressure
of the original confession in a later statement).
Footnote 24:
Clewis v. Texas, 386 U.S. 707, 710 (1967).
Footnote 25:
Aguilar v. Texas, 378 U.S. 108 (1964); Spinelli v. United
States, 393 U.S. 410 (1969).
Footnote 26:
See Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978) (search
and seizure claims ordinarily cannot be raised for the first time
on appeal because such errors do not affect the fundamental fairness
of the fact-finding process).
Footnote 27:
AS 11.71.040(a)(5).
Footnote 28:
894 P.2d 672 (Alaska App. 1995).
Footnote 29:
Id. at 676.
Footnote 30:
Id. at 678-79 (emphasis added).
Footnote 31:
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Footnote 32:
977 P.2d 741 (Alaska App. 1999).
Footnote 33:
Id. at 752.
Footnote 34:
Id. at 753.
Footnote 35:
See id. at 752-53.
