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Murray v. State (9/13/2002) ap-1826
Murray v. State (9/13/2002) ap-1826
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. 1826
September 13, 2002]
)
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Paul E. Malin, Assistant Public
Defender, Barbara K. Brink, Public Defender,
Rex Lamont Butler and Dan S. Bair, Rex Lamont
Butler and Associates, Anchorage, for
Appellant. Marcelle K. McDannel, Assistant
District Attorney, Susan A. Parkes, District
Attorney, 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.
In 1998, Bruce L. Murray was convicted of second-degree
weapons misconduct for knowingly possessing a firearm during the
commission of a felony drug offense.1 When this case was last
before us, we remanded for the superior court to consider whether
the State had proven a nexus between Murray's possession of a .44
magnum handgun and his commission of two felony drug offenses
(possessing an ounce or more of marijuana with intent to
distribute2 and maintaining a building for keeping or
distributing controlled substances3).
Murray argues that Superior Court Judge Larry D. Card
erred in finding the required nexus on remand. He contends that
Judge Card's decision rests on a clearly erroneous factual
finding and that Judge Card applied an incorrect legal standard.
We agree that the factual finding Murray attacks is clearly
erroneous. We remand for reconsideration.
Facts and proceedings
In our previous decision, we discussed the facts of
Murray's case at length.4 On August 13, 1997, officers responded
to Murray's hotel room looking for a dead body. Although the
officers did not find a body, Murray told the officers that his
girlfriend, Jeannie Joy, was in possession of cocaine and was
driving around town in his Chevy Blazer. When the officers
stopped Joy in the Blazer, they contacted Murray, and he
consented to a search of the Blazer. During the search, the
officers found marijuana and a crack pipe. Murray later arrived
at the scene and told the officers that he had given Joy the
marijuana to sell and that he had about a quarter pound of
marijuana and a handgun at his residence.
The officers obtained a search warrant for Murray's
residence and found: (1) a bag containing 170.9 grams
(approximately 6 ounces) of "bud" marijuana in a living room
closet; (2) a gram scale and a screening tin (used to separate
"bud" from "shake") in the kitchen; (3) marijuana residue in a
bedroom drawer and on 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. The officers later found a marijuana "bud" in the
handgun case.
Murray was tried in a bench trial before Judge Card.
In ruling that Murray committed second-degree misconduct
involving a weapon,5 Judge Card noted:
[A]t one time, a firearm anywhere near a
quantity of drugs was sufficient. But the
[Court] of Appeals [has] reversed that. And
. . . it appears that there should be at
least some logical relevance. And in 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, even though
[Murray made] statements that there had been
. . . a burglary . . . . One['s] 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 or ask[ing] for those or demanding
those drugs and any money. So, the firearm
was a necessary component.
Murray appealed on several grounds, and we remanded the case so
that the trial court could enter specific findings on whether a
nexus existed between Murray's possession of the firearm and
Murray's commission of the drug offenses.6
On remand, the superior court noted that its original
factual findings were intended to address the nexus issue and
incorporated its original findings into the remand order. The
court also emphasized the following facts:
The marijuana itself had been found in a
closet of the same bedroom [as the gun] and
Mr. Murray indicated that he had personally
bought the gun to protect the home since the
home had been burglarized. . . . [H]e was
purchasing it by inference . . . for the
safety of his marijuana, his weighing
materials, and the fact that he was
effectively trying to keep safe his stash of
marijuana.
. . . .
There's no question [that] the role of
the handgun is not active in that he is not
actively putting the gun into play by . . .
wearing it at the time he is conducting a
drug transaction, but it's more passive in
that it emboldens him to maintain his
marijuana possession and the amount which he
is possessing in his home. It helps make his
home more secure to keep the marijuana in his
possession. . . .
The substantial amount of drugs in this
instant case as well as Mr. Murray's status
as a felon leads the court to believe that
the nexus requirement is met beyond a
reasonable doubt
. . .
Discussion
Before turning to the appropriate legal standard in
this case, we address Murray's challenges to the superior court's
factual findings on remand. We uphold a trial court's factual
findings unless they are clearly erroneous.7
Murray first challenges the superior court's finding
that both the marijuana and the firearm were located in the
master bedroom. In its memorandum, the State concedes that the
superior court "mistakenly mentioned that the drugs were found in
Murray's bedroom closet, rather than in a living room closet."
Having reviewed the trial record, we agree with the State's
concession. Anchorage Police Officers Kevin Iverson and Steven
Hebbe testified during the trial that they recovered the
marijuana from the living room closet and that they recovered the
gun from a bedside table drawer in the master bedroom. The trial
court's finding that both the drugs and the firearm were located
in the bedroom was clearly erroneous.8 Because the proximity of
the firearm to the drugs is relevant to the trial court's nexus
finding, we remand for reconsideration of the nexus issue.
Murray also challenges the superior court's factual
finding that Murray possessed approximately half a pound of
marijuana instead of 170.9 grams. Although we do not believe
this distinction affected the court's ultimate ruling on the
nexus issue, we note for purposes of remand that the parties
stipulated at trial that Murray possessed 170.9 grams,
approximately six ounces, of marijuana.
Turning to the nexus issue, we believe the superior
court also may have applied an incorrect legal standard in
finding the nexus in this case. Alaska Statute 11.61.195(a)(1)
provides that a person commits the crime of second-degree
misconduct involving weapons if the person knowingly "possesses a
firearm during the commission of [misconduct involving a
controlled substance in the first-, second-, third-, or fourth-
degree]." In Collins v. State,9 we stated 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."10 However, we did not define the exact
contours of the required nexus.11 To assist the court on remand,
we will provide more explicit guidance.
In its brief, the State argues that there is always a
sufficient nexus under AS 11.61.195(a)(1) when someone possesses
drugs and a firearm in close physical proximity. Several state
courts also have focused on the physical proximity of the drugs
and the firearm in construing statutes similar to AS
11.61.195(a)(1). Some states assume a nexus between the firearm
and the drugs if the offender was in actual possession of the
firearm during the offense but require proof of a nexus if the
offender only had constructive possession of the firearm during
the offense.12 Other states require that the defendant be in
actual possession of the firearm during the commission of the
offense as an additional requirement or a substitute to the nexus
requirement.13 For example, in Gardner v. State,14 the Delaware
Supreme Court held that the elements of possessing a firearm
during the commission of a felony offense were not satisfied as a
matter of law because the gun was found in the bedroom, the drugs
were found in the basement and living room, and the State did not
introduce any evidence that the drugs seized were ever in the
bedroom or that the bedroom was ever the scene of drug
trafficking.15 Accordingly, the defendant did not actually
possess the firearm "during the commission of a felony."16
In analyzing our nexus requirement, we note that a test
based solely on physical proximity would allow convictions under
AS 11.61.195(a)(1) of those who commit a drug offense in their
residence and also possess in their residence a locked antique
gun, an unloaded hunting rifle, or a firearm for the general
protection of the residence. We do not believe this was the
intent of the legislature. Instead, we believe that, in enacting
AS 11.61.195(a)(1), the legislature intended to penalize those
who possess a firearm in furtherance of a drug offense.
Accordingly, to establish the nexus that we required in Collins,
the State must prove that the defendant's possession of the
firearm aided, advanced, or furthered the commission of the drug
offense. Possession of drugs and a firearm alone is insufficient
for such a finding even if the drugs and firearm were located in
close physical proximity.
However, while the physical proximity of a firearm to
drugs, with nothing more, is insufficient to support a nexus
finding, the fact-finder may consider physical proximity when
determining whether the State has proven that a firearm was
possessed in furtherance of a drug offense. Federal circuit
courts have identified the following factors as relevant in
deciding whether a firearm was possessed in furtherance of a drug
offense: (1) the type of drug activity conducted, (2) the
accessibility of the firearm, (3) the type of firearm, (4)
whether the firearm was stolen, (5) the status of the defendant's
possession (legitimate or illegal), (6) whether the firearm was
loaded, (7) the proximity of the firearm to drugs or drug
profits, and (8) the time and circumstances under which the gun
was found.17 We agree that these factors might be relevant to a
nexus determination under AS 11.61.195(a)(1). However, we
caution courts not to apply them in a mechanical manner. We do
not intend these factors as an exhaustive list, and we only
recognize them as relevant to the extent that they show the
defendant's possession of the firearm aided, advanced, or
furthered the commission of the drug offense.
In his original findings, Judge Card concluded that the
required nexus between the firearm and Murray's possession of the
marijuana was established by the fact that the firearm and the
drugs were located in the same house. But this, without more, is
insufficient to establish the nexus.
In his findings on remand, Judge Card apparently relied
on the mistaken assertion that the firearm and the marijuana were
located in the same bedroom when he concluded that the presence
of the firearm had "embolden[ed]" Murray to engage in felony
marijuana possession. In fact, the marijuana was located in
another part of the house. Moreover, Murray stated that he
purchased the gun for his girlfriend so that she might be
protected if there was a break-in. Murray's assertion was
corroborated by police testimony that, even when Murray was
actively looking for the gun so that he could turn it over to the
officers, he looked in a bucket on the floor before locating the
gun in the bedside table drawer. This evidence tends to undercut
any conclusion that Murray possessed the weapon with the purpose
of furthering his drug felony.
Many citizens of Alaska possess firearms to protect
their homes. If the firearm in Murray's residence was purchased
and used solely for home protection, then it would not have the
required nexus to Murray's drug offense. In other words, the
nexus is not proved simply because Murray's household possessions
included drugs. To rule otherwise would be contrary to our
conclusion in Collins that AS 11.61.195(a)(1) was not intended to
punish a "cocaine user [who] also happens to be a gun owner."18
For these reasons, we vacate Judge Card's ruling and
remand this case for reconsideration of the nexus issue.
Conclusion
The decision of the superior court on Murray's
conviction for second-degree weapons misconduct is VACATED and
the case is REMANDED for further consideration in light of this
opinion. We retain jurisdiction of this case.
_______________________________
1 AS 11.61.195(a)(1).
2 See AS 11.71.040(a)(2), AS 11.71.190(b).
3 AS 11.71.040(a)(5).
4 See Murray v. State, 12 P.3d 784, 787-88 (Alaska App.
2000).
5 AS 11.61.195(a)(1).
6 See Murray, 12 P.3d at 794-95; see also Collins v. State,
977 P.2d 741, 753 (Alaska App. 1999).
7 Chilton v. State, 611 P.2d 53, 55 (Alaska 1980).
8 See id.
9 977 P.2d 741 (Alaska App. 1999).
10 Id. at 748, 753.
11 See id. at 753.
12 See State v. Blanchard, 776 So.2d 1165, 1173 (La. 2001);
Commonwealth v. Montaque, 23 S.W.3d 629, 632-33 (Ky. 2000).
13 See Barnett v. State, 691 A.2d 614, 617-18 (Del. 1997);
Mack v. State, 312 A.2d 319, 322 (Del. 1973); State v. Smith, 601
So. 2d 263, 267 (Fla. Dist. Ct. App. 1992); State v. Garza, 592
N.W.2d 485, 494 (Neb. 1999).
14 567 A.2d 404 (Del. 1989).
15 Id. at 413-14.
16 Id.; Del. Code Ann. tit. 11, 1447(a).
17 See United States v. Timmons, 283 F.3d 1246, 1253 (11th
Cir. 2002); United States v. Wahl, 290 F.3d 370, 376 (D.C. Cir.
2002); United States v. Lomax, 293 F.3d 701, 705 (4th Cir. 2002);
United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001);
United States v. Basham, 268 F.3d 1199, 1206-08 (10th Cir. 2001);
United States v. Ceballos-Torres, 218 F.3d 409, 414-415 (5th Cir.
2000); see also State v. Blanchard, 776 So.2d 1165, 1173 (La.
2001) (listing similar factors as relevant to a nexus
determination).
18 Collins, 977 P.2 at 748, 753.
