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Noy v. State (11/14/2003) ap-1906
Noy v. State (11/14/2003) ap-1906
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
DAVID S. NOY, )
) Court of Appeals No.
A-8327
Appellant, )
Trial Court No. 4FA-01-3003 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, ) O N R E H E A R
I N G
)
Appellee. ) [No.
1906 November 14, 2003]
)
Appeal from the District Court, Fourth Judi
cial District, Fairbanks, Jane F. Kauvar,
Judge.
Appearances: William R. Satterberg, Jr.,
Fairbanks, for the Appellant. Kenneth M.
Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
In Ravin v. State, 537 P.2d 494 (Alaska 1975), the
Alaska Supreme Court held that the privacy clause of the Alaska
Constitution (Article I, Section 22) protects the possession of
marijuana in ones home for personal use. In 1990, the voters of
Alaska enacted AS 11.71.060(a), which purports to criminalize the
possession of any amount of marijuana, even when the marijuana is
possessed in ones home for personal use. In our initial opinion
in this case Noy v. State, Alaska App. Opinion No. 1897 (August
29, 2003)1 we held that this statute is unconstitutional because
it conflicts with the right of privacy recognized in the Ravin
decision. However, we concluded that the statute could be
preserved to the extent that it prohibits possession of four
ounces or more of marijuana.
The State now seeks rehearing. In its petition for
rehearing, the State argues that this Courts initial opinion is
flawed in some half-dozen ways, but most of the States arguments
ultimately rest on one underlying assertion: that we
misunderstood the nature of the Alaska Supreme Courts decision in
Ravin.
In our initial decision in this case, we read the Ravin
opinion to say that the privacy clause of the Alaska Constitution
restricts the legislatures (and the voters) authority to enact
laws prohibiting the possession of marijuana in ones home for
personal use. The State contends that this view of Ravin is
fundamentally flawed that Ravin did not announce a
constitutional restriction on the governments law-making power.
According to the State, Ravin did not hold that Article
I, Section 22 of the Alaska Constitution restricts the
governments authority to enact statutes that prohibit possession
of marijuana in ones home for personal use. Rather, Ravin
restricted the governments authority to enforce such statutes by
creating an affirmative defense that individual defendants can
raise if they are prosecuted for violating such a statute.
The State argues that this defense is similar to a
claim of entrapment or selective prosecution, in that it does not
rest on a claim that the defendant is innocent of wrongdoing, but
rather on a claim that the government violated constitutional
guarantees when it singled out this particular defendant as the
target of prosecution. According to the State, Ravin stands for
the proposition that, in any prosecution for possession of
marijuana in ones home, the defendant can assert that the
possession was of a small amount for personal use. If the
defendant raises such a claim, the matter is decided (before
trial) by a judge, not a jury. To defeat the proposed defense,
the State would have to prove either (1) that the marijuana was
not for personal use, or (2) that the government had a sufficient
interest in prohibiting the possession of that particular amount
of marijuana under the specific circumstances of that defendants
case.
In other words, the State argues that Ravin created a
system in which the constitutionality of marijuana prosecutions
would be decided by trial judges on a case-by-case basis and
that, in these case-specific hearings, the State would repeatedly
try to convince numerous different judges that there is a
sufficient government interest to justify imposing criminal
penalties on people who possess varying amounts of marijuana.
The States proposed interpretation of the Ravin
decision would seemingly put us on the road to legal chaos.
Under the States proposal, dozens of judges across the state
would be required to issue potentially inconsistent rulings as to
whether, under the facts of a particular defendants case, the
State had sufficient justification to criminalize the defendants
possession of 3.0 ounces, or 2.2 ounces, or 1.4 ounces, or 0.6
ounces of marijuana.
However, our primary reason for rejecting the States
interpretation of Ravin is that the States interpretation is
inconsistent with Ravin itself.
The Ravin decision does not speak of an affirmative
defense of the type proposed by the State in its petition for
rehearing, nor does the Ravin opinion describe itself as
establishing case-specific limits on the States enforcement of
marijuana statutes. Rather, in the opening sentence of Ravin,
the Alaska Supreme Court described the issue before them as [t]he
constitutionality of Alaskas statute prohibiting possession of
marijuana.2 Later in the opinion, after the supreme court held
that Article I, Section 22 of our state constitution guarantees a
right of privacy in ones home3, the court declared that two major
questions remained:
whether the State has demonstrated sufficient
justification for the prohibition of
possession of marijuana in general ... and
... whether the State has met the greater
burden of showing a close and substantial
relationship between the public welfare and
control of ingestion or possession of
marijuana in the home for personal use.
Ravin, 537 P.2d at 504.
The supreme court then proceeded to analyze the
scientific data concerning the uses and effects of marijuana.
The court did not attempt to analyze the particular facts of
Irwin Ravins case; rather, the court assessed the legislatures
overall justification for regulating any persons possession of
marijuana in their home.4
And when the Ravin court announced its conclusion, the
court did not frame that conclusion in terms of whether the State
had an interest in prohibiting the possession of marijuana under
the particular facts of the case before it. Instead, the court
framed its conclusion as a general restriction on the governments
authority to legislatively control this aspect of peoples
personal behavior:
[W]e conclude that [the state has shown]
no adequate justification for the states
intrusion into the citizens right to privacy
by its prohibition of possession of marijuana
by an adult for personal consumption in the
home[.] The privacy of the individuals home
cannot be breached absent a persuasive
showing of a close and substantial
relationship of the intrusion to a legitimate
governmental interest. Here, mere scientific
doubts will not suffice. The state must
demonstrate a need based on proof that the
public health or welfare will in fact suffer
if the controls are not applied.
The state has a legitimate concern with
avoiding the spread of marijuana use to
adolescents who may not be equipped with the
maturity to handle the experience prudently,
as well as a legitimate concern with the
problem of driving under the influence of
marijuana. Yet these interests are
insufficient to justify intrusions into the
rights of adults in the privacy of their own
homes.
Ravin, 537 P.2d at 511.
In the years since Ravin was decided, there has been no
suggestion (until now) that Ravin was something other
than normal constitutional litigation in which the
supreme court adjudicated the constitutionality of a
particular category of criminal statute. For example,
six months after Ravin, in Belgarde v. State, the
supreme court referred to Ravin as [a] case [in which]
we held that the state may not prohibit possession of
[marijuana] by an adult in [their] home for personal
consumption.5 In 1978, in State v. Erickson, the
supreme court again declared that Ravin represented a
restriction on the states power to legislate:
In Ravin v. State, this court held that
the state could not bar the personal use and
possession of marijuana in the home. In view
of the relative harmlessness of the drug, the
individuals right to privacy under the Alaska
Constitution was found to outweigh the state
interest in regulation.
574 P.2d 1, 21 (Alaska 1978) (footnote omitted). And more
recently, in Luedtke v. Nabors Alaska Drilling, Inc., the supreme
court declared that Ravin addressed the issue of whether the
state could prohibit the use of marijuana in the home. We held
that it could not.6
Based on this analysis of the Ravin decision and the
later supreme court decisions construing Ravin, we are convinced
that the States interpretation of Ravin is wrong. Ravin did not
create an affirmative defense that defendants might raise, on a
case-by-case basis, when they were prosecuted for possessing
marijuana in their home for personal use. Instead, both in the
Ravin opinion itself and in the supreme courts later descriptions
of Ravin, the Alaska Supreme Court has repeatedly and
consistently characterized the Ravin decision as announcing a
constitutional limitation on the governments authority to enact
legislation prohibiting the possession of marijuana in the
privacy of ones home.
Accordingly, we reject the States suggestion that
Ravin left Alaskas marijuana statutes intact but created an
affirmative defense to be litigated in each individual case.
Although this is not a factor in our interpretation of
Ravin, we note that the Alaska Legislature took this same view of
Ravin when they refashioned this states drug laws twenty years
ago. As we described in Walker v. State7, the legislature
responded to Ravin in 1982 by enacting a statute former
AS 11.71.060(a)(4) that prohibited possession of four ounces or
more of marijuana, even if the marijuana was possessed in ones
home for personal use. In the commentary that accompanied this
statute, the legislature declared:
[T]his legislation is intended to
clarify the law in Alaska concerning
possession of marijuana, in light of the
decision of the Supreme Court of Alaska in
Ravin v. State, 537 P.2d 494 (Alaska 1975).
Ravin held that Alaskas constitutional right
to privacy protects the possession and use of
marijuana by an adult, in the home, in
amounts indicative of personal use in a
purely personal, non-commercial context. The
approach taken in this Act is to define, for
purposes of the decision in Ravin, an amount
which is indicative of personal use, and to
provide a clear line of demarcation of four
ounces, so that citizens of this state will
know precisely what conduct is prohibited.
Commentary and Sectional Analysis for the 1982 Revision of
Alaskas Controlled Substances Laws (CCSB 190), p. 19
(quoted in Walker v. State, 991 P.2d at 802-03).
Thus, not only is the States suggested interpretation
of Ravin at odds with the supreme courts statements on
this question, but it is also at odds with the Alaska
Legislatures announced policy aims in this area of the
law: the aim of defin[ing], for purposes of ... Ravin,
[a specific] amount which is indicative of personal
use, and the aim of provid[ing] a clear line of
demarcation ... , so that citizens of this state will
know precisely what conduct is prohibited.
We now address certain other aspects of the States
petition for rehearing.
In our original decision in this case, we stated that
because the jury acquitted Noy of the charge of
possessing eight ounces or more of marijuana, the State
is barred from asserting, in any future litigation,
that Noy did indeed possess eight ounces or more of
marijuana. The State argues that this conclusion is
mistaken for two reasons.
First, the State contends that the doctrine of
collateral estoppel does not apply when the aggrieved party had
no method of seeking appellate review of the adverse judgement.
The State points out that the double jeopardy clauses of the
federal and state constitutions preclude the State from seeking
appellate review of a jurys verdict of acquittal. Thus, the
State argues, the fact that Noys jury acquitted him of possessing
eight ounces or more of marijuana should not estop the State from
continuing to assert that Noy possessed more marijuana than the
jury found.
The problem with the States argument is that it is
directly contrary to the United States Supreme Courts holding in
Ashe v. Swenson, 397 U.S. 436, 445-46; 90 S.Ct. 1189, 1195-96; 25
L.Ed.2d 469 (1970).
Second, the State argues that the jurys acquittal
should not be considered conclusive because the jury was
misinstructed on how to calculate the weight of marijuana. The
State asserts that, given the evidence presented at Noys trial,
it is obvious that Noy possessed at least eight ounces of
marijuana, and therefore the jurys verdict of acquittal must have
been the fruit of the flawed jury instruction.
But as we explained in our initial opinion, the State
did not introduce the marijuana itself; instead, the State relied
on photographs and testimony concerning the marijuana. The
photographs showed that the marijuana contained stalks, not just
leaves and buds. Even if the jury had been correctly instructed,
they would have been told that stalks are not to be considered
when assessing the weight of harvested marijuana. Although there
may be a substantial possibility that the erroneous weight-
calculation instruction influenced the jurys thinking when they
assessed the weight of the marijuana, it is also possible that
the jurors were not convinced beyond a reasonable doubt that the
harvested marijuana, minus the stalks, weighed eight ounces or
more. Thus, we must apply the collateral estoppel rule of Ashe
v. Swenson. See our discussion of a related point in State v.
McDonald, 872 P.2d 627, 660 (Alaska App. 1994).
Moreover, even if we assume that the erroneous jury
instruction played an instrumental role in the jurys decision to
acquit Noy of possessing eight or more ounces of marijuana, the
State would still be bound by the jurys verdict. The law on this
point is summarized in Wayne R. LaFave, Jerold H. Israel, and
Nancy J. King, Criminal Procedure (2nd ed. 1999):
If the jury reaches a verdict of
acquittal or the judge grants a judgment of
acquittal, double jeopardy bars a new trial
even if it appears that the acquittal was
based on an erroneous interpretation of the
law.
Id., 25.1(g), Vol. 5, p. 648. See also id.,
25.3(b), Vol. 5, pp. 666-68.
This view of the double jeopardy
clause is borne out in the case law. See
United States v. Martin Linen Supply Co., 430
U.S. 564, 571; 97 S.Ct. 1349, 1354;
51 L.Ed.2d 642 (1977); Livingston v.
Murdaugh, 183 F.3d 300, 301-02 (4th Cir.
1999).
Finally, the State argues for the
first time that if we adjudicate the
constitutionality of AS 11.71.060(a) in Noys
case, our decision will unfairly preclude the
State from attempting to prove that Ravin
should be overruled or limited i.e.,
preclude the State from attempting to prove
that there is sufficient justification for a
criminal statute prohibiting any and all
possession of marijuana, even possession of
marijuana by adults in their home for
personal use.
But our decision in this case
merely implements the supreme courts
constitutional ruling in Ravin. The State
remains free in the future to challenge the
continuing vitality of Ravin.
For all of these reasons, the
States petition for rehearing is DENIED.
_______________________________
1 2003 WL 22026345.
2 Ravin, 537 P.2d at 496.
3 Id. at 504.
4 See id., 537 P.2d at 504-511.
5 543 P.2d 206, 207 (Alaska 1975).
6 768 P.2d 1123, 1135 (Alaska 1989).
7 991 P.2d 799 (Alaska App. 1999).
