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303 K Street, Anchorage, Alaska 99501
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| FRANK HENRY MARSHALL, | ) |
| ) Court of Appeals No. A-9721 | |
| Appellant, | ) Trial Court No. 3AN-03-12471 CR |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) |
| ) No. 2202 December 24, 2008 | |
Appeal from the
Superior Court, Third Judicial District,
Anchorage, Philip R. Volland and John E.
Suddock, Judges.
Appearances: G. Blair McCune, Anchorage,
and Frank Henry Marshall, in propria
persona, Seward, for the Appellant. Kenneth
M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and Talis J. Colberg, Attorney
General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
STEWART, Judge.
On November 25, 2003, Frank Henry Marshall handed
nineteen 40-milligram Oxycontin pills to an undercover police
officer in exchange for $600 cash. This transaction ultimately
led to Marshalls conviction at trial on one count of second-
degree misconduct involving a controlled substance.1
Marshall raises several issues in this appeal. He
contends that the superior court erred when it rejected his
entrapment claim without providing him an evidentiary hearing.
We conclude that the superior court properly denied Marshalls
claim without a hearing.
Marshall next contends that the superior court
erroneously denied his motion to suppress evidence the police
seized from the truck in which he was a passenger when he
exchanged the nineteen pills for the $600 cash. We conclude that
Marshall lacked standing to object to the entry into the truck
and the seizure of the cash and a pill found on the floor because
he had no reasonable expectation of privacy to assert in the pill
and the cash seized. With regard to a bag of drug prescriptions
found in the dash, although Marshall may have had a subjective
expectation of privacy in the bag and its contents, the bag and
some of the contents were visible, and the character of the bag
and contents as evidence of the recently completed drug
transaction was readily apparent.
Marshall attacks the superior courts evidentiary
ruling permitting the State to admit evidence that Marshall
possessed other controlled substances when he was arrested. On
appeal, the State agrees with Marshall that the evidence should
have been excluded, but argues that the admission of this
evidence was harmless. We question whether we should accept the
States concession of error, particularly in light of the defense
Marshall advanced at trial Marshall argued that the State had
not proven beyond a reasonable doubt that he knew that he was
exchanging the nineteen Oxycontin pills he handed the undercover
officer for $600 cash. His collection of prescriptions, pills,
and pill bottles is seemingly relevant to his general knowledge
of prescription pills and the identity of the pills he
transferred to the officer. Even so, we conclude that if the
admission of this evidence was error, the error was harmless.
Shortly before trial, the prosecutor and one of the
police officers interviewed Robert Clossey, an informant and the
driver of the truck when Marshall exchanged the pills for cash.
Because the prosecutor recorded the interview, the recording was
discoverable under Alaska Criminal Rule 16(b)(1)(A)(i) since it
was a recorded statement of a witness. The prosecutor provided
this discovery during trial. We conclude that the superior court
did not abuse its discretion when it rejected Marshalls request
for a mistrial or his alternative request for a continuance.
Marshall, who was granted co-counsel status on appeal,
raises several pro se claims. We reject his claims that he was
entitled to dismissal of the charges because he did not receive a
preliminary hearing, that he was arrested without probable cause,
that the police wrongfully listened to the transaction using a
safety wire without a warrant, that he was subject to vindictive
or selective prosecution, and that he was not afforded a speedy
trial.
Because Marshall was a second felony offender for
purposes of presumptive sentencing, he faced a 10-year
presumptive term. Marshall proposed several statutory mitigating
factors, but the superior court concluded that Marshall had not
met his burden of proof on those factors. After reviewing the
sentencing record, we uphold the superior courts rejection of the
mitigators.
Marshall also contends that his sentence is excessive.
But the Superior Court was not authorized to reduce the
presumptive term in the absence of mitigating factors, and
Marshall did not argue that the case should be referred to the
three-judge sentencing panel. Accordingly, we affirm Marshalls
conviction and sentence.
Background facts
Robert Clossey and his companion, Margaret Purcell,
both police informants, learned that Marshall wished to sell
Oxycontin that he obtained with a prescription. They arranged
for Marshall to make a sale to an undercover police officer.
Clossey and Purcell were informants because both were
arrested for selling Oxycontin to undercover police in April
2002. Both agreed to help the police in the hope of favorable
treatment. Police struck a deal with Clossey and Purcell,
explaining that they could avoid prosecution or receive
mitigation if they acted as informants; specifically, if they
contacted police to set up undercover drug buys with people
selling Oxycontin or cocaine.
On November 24, 2003, approximately fifteen months
after her arrest for selling Oxycontin, Purcell contacted Officer
Steve Haas to report that a man named Frank Marshall had a
prescription for Oxycontin and wanted to sell some pills. That
same day, Clossey was unsuccessful in his attempt to reach his
contact, Detective Jason Penman of the Anchorage Police
Department Metro Drug Unit. Because Clossey and Purcell believed
Marshall to be homeless and that it might be difficult to find
him later, they invited him to eat dinner at their house and stay
the night.
The next day, Clossey reached Penman and told him that
Marshall wanted to sell a portion of his Oxycontin prescription.
Penman decided that while undercover, Haas would buy twenty
Oxycontin pills from Marshall for $600. Clossey agreed to drive
Marshall to a parking lot on Tudor Road to complete the
transaction. Marshall filled his Oxycontin prescription that
same day November 25.
Police had not met with Clossey before he drove
Marshall to the agreed-upon location. When Clossey pulled into
the parking lot, Haas approached the passenger side of Closseys
truck. Clossey did most of the talking, announcing the terms of
the sale out loud. Marshall then handed Haas nineteen pills in
exchange for $600 (the sale was intended to be for twenty pills,
but a single pill was later found on the floor of Closseys
truck).
After the exchange, Clossey and Marshall drove away.
Immediately afterwards, two patrol cars, one driven by Anchorage
Police Sergeant Roy LeBlanc and the other by Officer Jeff Bell,
surrounded Closseys truck. In an effort to conceal Closseys
role, the police arrested and searched him along with Marshall.
Bell seized prescription pill bottles for Oxycontin, hydrocodone,
and diazepam from Marshall. There were twenty-eight pills of
Oxycontin remaining from Marshalls sixty-pill prescription, and
eighty pills of hydrocodone remaining in a one-hundred-and-eighty-
pill prescription bottle. LeBlanc then searched Closseys truck
and found two purple bags containing prescription receipts and
documents with Marshalls name on them, one pill of Oxycontin on
the floor of the passengers side, and the $600 cash hidden in the
springs of the passengers seat cushion.
Detective Penman interviewed Marshall at the station
and recorded that interview. During the interview, Marshall
denied any wrongdoing.
The grand jury charged Marshall with two counts of
second-degree misconduct involving a controlled substance and one
count of third-degree misconduct involving a controlled
substance. The first count of second-degree misconduct charged
Marshall for the delivery of nineteen Oxycontin pills to the
undercover officer in exchange for $600. The second charged
Marshall with intending to deliver the remaining Oxycontin pills
in his prescription that were found with him when he was
arrested. And the count for third-degree misconduct charged
Marshall with intending to deliver pills from his remaining
supply of prescriptions that were found with him when he was
arrested: specifically, hydrocodone. The superior court granted
Marshalls motion to dismiss the charge of third-degree
misconduct, and Marshall proceeded to trial on the second-degree
misconduct charges. The jury convicted Marshall on the first of
these charges, and acquitted him on second.
Why we uphold the superior courts decision to deny a
hearing on Marshalls entrapment claim
Marshall filed a motion asking the superior court to
dismiss the charges against him on the theory that he had been
entrapped. The superior court denied this motion without holding
an evidentiary hearing. On appeal, Marshall argues that it was
error for the superior court to rule on the entrapment motion
without first holding an evidentiary hearing.
In his motion, Marshalls theory of entrapment was that
the Oxycontin pills delivered to the police officer did not
actually belong to Marshall; instead, he maintains that the pills
were the property of Clossey. Marshall thus suggested that the
States evidence on this point (that is, that the pills belonged
to Marshall) was not conclusive. He argued that the evidence was
at least arguably consistent with the theory that Clossey
supplied the pills, and that Marshalls only involvement in the
transaction was that Clossey passed the pills to Marshall so that
he could then hand the pills to the undercover officer (the
purported purchaser).
These assertions, if proved, would establish
entrapment under the Bueno theory of entrapment. This doctrine,
first announced in United States v. Bueno,2 holds that it is
entrapment for the police to set up a drug deal by supplying
their informant with drugs, arranging the sale of these drugs to
another undercover officer, and then having the informant induce
the defendant to act as the middleman in the transaction.
However, the Bueno doctrine is no longer part of the
federal law of entrapment, and it is unclear whether the Alaska
law of entrapment includes the Bueno doctrine.
Five years after it was announced, the Bueno theory of
entrapment was rejected by the United States Supreme Court as
being inconsistent with the federal approach to that doctrine,
which hinges on a defendants subjective willingness to engage in
criminal conduct.3 That same year, in Evans v. State,4 the
Alaska Supreme Court indicated that the Bueno theory of
entrapment was quite compatible with Alaskas objective approach
to entrapment, but the supreme court did not decide whether to
adopt the Bueno doctrine as a matter of state law (because, even
under the Bueno doctrine, the facts of Evans did not establish
entrapment).
And in Bush v. State,5 this court stated that the
Bueno theory of entrapment seems to have been adopted by Alaska
because the supreme court referred to this theory approvingly in
Evans and later in Coffey v. State.6 However, we now rescind
that assertion. Neither Evans nor Coffey explicitly adopts the
Bueno theory of entrapment, and this issue remains undecided in
Alaska.
To resolve Marshalls case, however, we need not decide
whether to adopt the Bueno doctrine, because we conclude that
Marshall failed to make a sufficient offer of proof to support
his assertion of entrapment.
Marshalls theory of entrapment hinges on the factual
assertion that the Oxycontin pills did not come from him (even
though he had a prescription for these pills), but rather were
supplied by Clossey. Marshall did not submit any affidavits,
police reports, or other materials to support this factual
assertion. He simply based his argument on the assertion that
the States description of events did not completely rule out the
possibility that the pills were supplied by Clossey.
When the State filed its opposition to Marshalls
motion, one of the States primary arguments was that Marshalls
pleading was insufficient because its facts were unsupported by
affidavit or other evidence. In particular, the State argued
that Marshall was obligated to provide some modicum of evidence
to support his primary assertion of fact that Clossey supplied
the Oxycontin before Marshall would be entitled to an
evidentiary hearing on his entrapment motion.
Despite the States position on this issue, when
Marshall filed his reply to the States opposition, he did not
provide any affidavit or other evidence to support his assertions
of fact. The superior court denied Marshalls entrapment motion
without holding a hearing. On the specific issue of who supplied
the Oxycontin, the court wrote:
Marshall bears the burden of establishing
entrapment[,] and his assertions that the
state has failed to prove that the Oxycontin
was Closseys [] do not meet this burden.
Marshalls speculation about the source of
the Oxycontin is contradicted by the fact
that Marshall was in possession of a
prescription for [this] drug[,] and that it
was Marshall who held the drugs in his hand
and took the money from Officer Haas. ...
....
... Marshall has shown nothing more
than that Clossey informed [the] police of
Marshalls willingness to sell Oxycontin.
Accordingly, the ... motion to dismiss for
entrapment and [the] request for [an
evidentiary] hearing is DENIED.
In Adams v. State,7 and again in Davis v. State,8 this
court addressed the question of when a trial court is required to
hold an evidentiary hearing on pretrial motions. As we explained
in Davis:
[T]he moving party bears the initial burden
of alleging specific facts, supported by
affidavits or other documents, that would
entitle the party to relief. ... Only [when]
the pleadings [present] a genuine dispute as
to material facts is an evidentiary hearing
required.[9]
In this case, Marshall raises the claim of entrapment.
As the superior court noted in its decision, it was therefore his
burden to present a prima facie case for relief. And as the
superior court also noted, Marshall could not establish a prima
facie case by merely making assertions that ... the Oxy[c]ontin
was Closseys or by presenting speculation about the source of the
Oxy[c]ontin. Instead, Marshall was obligated to offer
affidavits, prior testimony, or other documents to support his
underlying assertion that Clossey was the source of the drug.
This court recently confronted an analogous issue in
LaBrake v. State.10 LaBrake involved a petition for post-
conviction relief based on an assertion of ineffective assistance
of counsel. The question was whether the superior court acted
properly when it dismissed LaBrakes petition without holding an
evidentiary hearing.
In arguing that the superior court should hold a
hearing on his claims, LaBrake relied on the general principle
that when a court assesses whether to grant judgment on the
pleadings or summary judgment to a party, it assumes the truth of
all well-pleaded assertions of fact made by the non-moving
party.11 But as we explained in LaBrake, the rule that a court
must assume the truth of the non-moving partys assertions of fact
does not apply to statements concerning the law, or concerning
mixed questions of law and fact (e.g., ... assertions concerning
the legal effect or categorization of the underlying
occurrences), nor does the presumption apply to ... conclusory
... pro forma assertions of the ultimate facts to be proved when
these assertions are not supported by specific details.12
In the present case, Marshall made assertions about an
ultimate fact to be proved (that Clossey was the one who supplied
the Oxycontin), but he did not support this assertion with
details or offer any evidence to support this assertion. Rather,
Marshall relied solely on the fact that the existing record did
not necessarily rule out this possibility. Under Alaska law,
this was not sufficient to avoid a summary ruling against him.
In his brief to this court, Marshall acknowledges this
case law, but he argues that it applies only to pretrial motions,
and not to affirmative defenses. Marshall contends that once a
defendant complies with Alaska Criminal Rule 16(c)(5) by giving
pretrial notice that he will rely on the defense of entrapment,
the defendant is then automatically entitled to an evidentiary
hearing on that defense even if he has offered no evidence to
support it.
We do not believe that Criminal Rule 16(c)(5) was
meant to supersede the established law on the litigation of
pretrial motions and other claims for relief. Rule 16(c)(5) was
intended to give the State advance notice that certain types of
claims alibi, justification, duress, entrapment, or [any] other
statutory or affirmative defense13 would be raised in the
defendants case. But Rule 16(c)(5) was not intended to exempt
the defendant from presenting evidence to support the claimed
defense.
When the announced defense is one that must be
litigated to the jury, the fact that a defendant has given
pretrial notice of that defense under Rule 16(c)(5) does not
exempt him from the rule that, if there is no evidence offered
to support each element of the proposed defense, a trial judge
need not instruct the jury on that defense (that is, need not
ask the jury to decide it).14
And when the announced defense is one that is
litigated to the court such as entrapment this request for
relief is governed by the same rule that applies to other
requests for relief addressed to the court: The court is not
obligated to hold an evidentiary hearing on the defendants claim
unless that claim is supported by a proper offer of proof. In
Marshalls case, he failed to offer any evidence to support a
crucial assertion of fact: his assertion that the Oxycontin was
Closseys. Accordingly, the superior court could reject Marshalls
claim of entrapment summarily, without holding an evidentiary
hearing.
Marshalls claim that the police illegally seized
evidence from the truck
Marshall moved to suppress certain evidence seized
from Closseys truck: a bag with prescriptions, the Oxycontin pill
found on the passenger floor, and the $600 cash found under the
passenger seat. Marshall claimed that the warrantless search of
the truck did not fall into any exception to the warrant
requirement because the truck could have been secured while a
warrant was obtained. To make such a claim, Marshall maintained
that he had a privacy interest in the articles seized by the
police and, therefore, had standing to contest the search.
Superior Court Judge Philip R. Volland denied this
motion. Relying on Waring v. State,15 the superior court ruled
that Marshall did not have standing to contest the seizure of the
three items identified in his motion. In Waring, the Alaska
Supreme Court held that the adoption of the exclusionary rule in
Evidence Rule 412 did not eliminate the standing requirement for
the assertion of a search and seizure claim.16 The court
expanded the standing requirement from Rakas v. Illinois,17 which
barred a defendant from vicariously claiming the violation of a
codefendants Fourth Amendment right, by allowing a defendant to
assert the violation of a codefendants Fourth Amendment right if
the defendant can show (1) that a police officer obtained the
evidence as a result of gross or shocking misconduct, or (2) that
the officer deliberately violated a codefendants rights.18
We uphold Judge Vollands decision. Even assuming that
the police violated Closseys privacy interests when they searched
his truck (the State asserts that Clossey consented to a search
of his truck) the record contains no basis to find that the
police engaged in gross or shocking misconduct when they searched
the truck and found the prescription bag, a single Oxycontin
pill, and $600. Nor is there any basis in the record to find
that the police deliberately violated Closseys rights. After
all, Clossey was a cooperating informant. Furthermore, Marshall
did not claim a possessory interest in the $600 cash or the
single pill found on the floorboard. Marshall was a guest in
Closseys truck, and presumably chose to place the prescription
bag in the dash of the truck where it was found by the police.
Under the standing requirement established in Waring,19 Marshall
does not have standing to argue that the police illegally entered
Closseys truck or illegally seized the cash and the pill that
Marshall did not claim was his. As for the prescription bag
found in the dashboard of Closseys truck, it was in plain view
and was evidence of the crime.
Because we agree that Marshall does not have standing
to contest the entry into the truck in which he claimed no
interest, we need not consider the States alternate claim that
the search of the truck was justified as a search incident to
Marshalls arrest.
Why we uphold the superior courts ruling on the States
discovery violation
Shortly before Marshalls trial, the prosecutor
interviewed Clossey and electronically recorded that session.
During the interview, Clossey described certain statements that
Marshall had made. The prosecutor, however, did not disclose
this interview until after Marshalls trial had already begun.
Shortly after this interview was belatedly disclosed,
the defense attorney moved for a mistrial. She contended that
the prosecutor had violated Alaska Criminal Rule 16 and that
Marshalls defense had been prejudiced by the interviews late
disclosure, noting that she had already delivered her opening
statement. She argued that the recorded interview with Clossey
was inconsistent with the theory of defense she had presented in
this opening statement. Hence, her opening statement would have
been different if the recorded interview had been disclosed in a
timely fashion (or at least before the trial started). The
defense attorney also argued that her cross-examination of
Clossey would not be as effective, because she would not have
adequate time to investigate and prepare for the information
contained in the interview.
Because the prosecutors interview with Clossey was
recorded, the State was obliged to disclose the interview under
Criminal Rule 16(b)(1)(A)(i), which requires disclosure of
written or recorded statements of witnesses. In addition, even
if the interview had not been recorded, the State would have had
to disclose the portions of the interview in which Clossey
described statements made by Marshall under Criminal Rule
16(b)(1)(A)(ii), which also requires disclosure of the substance
of any oral statements made by the accused.20
When Marshall requested the mistrial, the prosecutor
conceded that the State had violated Criminal Rule 16 by not
disclosing the interview earlier. However, the State opposed a
mistrial, arguing that the late disclosure could be cured by a
continuance or by a limitation on the States presentation of the
information contained in the interview. In response to
the motion for mistrial, Superior Court Judge John E. Suddock
concluded that the information contained in the recorded
interview was not inconsistent with Marshalls announced defense,
and he further concluded that Marshall would not be prejudiced by
the lack of advance notice if limitations were placed on the
States introduction of some of the information contained in the
interview (in particular, Closseys assertions that he had not
used illicit drugs since his arrest two years before, and that he
was instead taking methadone). For these reasons, Judge Suddock
denied Marshalls request for a mistrial.
On appeal, Marshall renews his contentions that he was
prejudiced by the late disclosure in two ways: first, because
the information contained in Closseys interview undercut the
theory of the case that Marshalls attorney had announced in her
opening statement; and second, because Marshalls attorney could
not realistically prepare in the middle of trial to cross-examine
Clossey about the information disclosed in the interview.
(We note that Marshall does not argue that he was
prejudiced by the States violation of Rule 16(b)(1)(A)(ii) that
is, by the late disclosure of the statements attributed to him by
Clossey. Rather, Marshalls arguments on appeal rest solely on
the fact that the State violated Rule 16(b)(1)(A)(i) by not
disclosing a recorded statement of a witness.)
We turn first to the issue of whether the late
disclosure undercut Marshalls opening statement. In that opening
statement, Marshalls attorney outlined the theory that Clossey
had used Marshall as window dressing. Essentially, she meant
that Clossey had set Marshall up to be a scapegoat in the drug
transaction so that Clossey could portray himself as a productive
informant who should be allowed to remain at liberty and not be
prosecuted for his own crimes.
Marshall argues that this theory was undercut by
Closseys statements in the recorded interview that Clossey had
stopped using illegal drugs and switched to methadone under a
doctors care. Marshall contends that his window dressing theory
of defense depended on the assertion that Clossey was the true
source of the Oxycontin, and that this assertion was inconsistent
with Closseys statement that he was on methadone and no longer
used any non-prescribed drugs.
But as Judge Suddock correctly noted, Marshalls
opening statement did not contain an explicit assertion about the
origin of the nineteen pills that Marshall gave to the undercover
officer for $600 cash. In other words, the window dressing
theory of the case could remain essentially the same regardless
of whether Clossey coaxed Marshall into selling a portion of his
own prescription for Oxycontin, or whether Clossey had a supply
of Oxycontin from some other source.
Similarly, Judge Suddock perceived the possibility
that Closseys assertions about confining himself to methadone,
and not using illicit drugs, could potentially undercut the
argument that Clossey was the source of the Oxycontin. For this
reason, the judge correctly prohibited the State from introducing
testimony on this particular aspect of Closseys interview
(unless, of course, Marshall took some affirmative step to open
th[e] door to this subject).
Because of this measure by Judge Suddock, we agree
with him that, under these circumstances, the late disclosure of
the Clossey interview did not undercut the theory presented in
Marshalls opening statement.
Marshalls second main argument is that, without a
mistrial, he was unable to effectively prepare to meet the
information disclosed in the Clossey interview. Marshall focuses
in particular on Closseys statements that he was taking
methadone, that he had stopped using any non-prescribed drugs,
and that he had turned his life around.
But as explained above, Judge Suddock barred the State
from eliciting testimony about Closseys regimen of methadone. We
note, moreover, that during her cross-examination of Clossey,
Marshalls attorney elicited the fact that three doctors had fired
Clossey as a patient because of accusations that he was selling
drugs he obtained from these doctors by prescription events that
occurred after Clossey was arrested and agreed to cooperate with
the police. And the defense attorney elicited testimony from
Clossey that in that same time period he had been prescribed
oxycodone (the active ingredient in Oxycontin), hydrocodone, and
diazepam. And, of course, the defense attorney focused on the
fact that Clossey faced potential prosecution and imprisonment
if, after agreeing to work as a police informant, he failed to
live up to their expectations. In light of such
testimony, we agree with Judge Suddock that the record fails to
establish that Marshall suffered the kind of prejudice that would
warrant a mistrial. And, for these reasons, we conclude that
Judge Suddock did not abuse his discretion when he ruled that the
States untimely disclosure of the Clossey interview did not
require a mistrial.
Marshalls attack on the courts Evidence Rule 404(b)
ruling
When the police arrested Marshall, they seized
prescription bottles containing Oxycontin, hydrocodone, and
diazepam. There were twenty-eight pills of Oxycontin remaining
in one prescription bottle (out of a sixty-pill prescription),
and eighty pills of hydrocodone remaining in another (out of a
one-hundred-and-eighty-pill prescription).
Marshall was originally indicted on two counts of
second-degree misconduct involving a controlled substance and one
count of third-degree misconduct involving a controlled
substance.21 The first count of second-degree misconduct
involving a controlled substance was for the nineteen pills
Marshall exchanged with Haas; the second count of second-degree
misconduct was for the twenty-eight pills police seized from
Marshall when they arrested him; and the third count, of third-
degree misconduct, was for the hydrocodone pills found on
Marshalls person.
Marshall moved to dismiss this last count for third-
degree misconduct, and Judge Volland found that insufficient
evidence was presented to support it because there was no
evidence that Marshall intended to illegally deliver the
hydrocodone pills. And Judge Volland ruled that no inference
could be drawn from the first two counts based on his sale of
Oxycontin pills to police and the remaining pills in the
prescription bottle because Closseys dealings with the State
were based solely on Oxycontin. Judge Volland dismissed this
count just before trial, and the State filed a notice of intent
to offer the hydrocodone evidence under Alaska Evidence Rule
404(b).
The State asserted that it had evidence that Marshall
delivered hydrocodone to another person the day before his
arrest. The State also asserted that it could produce an expert
who would testify that, between the time that Marshall filled the
hydrocodone prescription the day before his arrest and the time
that he was arrested, he could not have safely ingested the one
hundred pills that were missing from his prescription bottle.
The State contended that this evidence was relevant to prove
Marshalls intent, motive, and plan to deliver more of the
prescription pills in his possession. The State claimed that it
needed to introduce this evidence to counter Marshalls expected
argument that the State could not prove that he intended to
deliver the remaining Oxycontin pills charged in second count of
second-degree misconduct.
The State advanced the same argument regarding the
diazepam: Marshall filled a ninety-pill prescription the day
before his arrest, but had only sixty-eight pills when he was
arrested.
In response, Marshall argued that no reasonable
inference of his intent to sell the remaining Oxycontin pills in
his possession could be drawn from the hydrocodone and diazepam
he possessed. Judge Suddock rejected this argument and found the
evidence relevant to Marshalls state of mind.
During the trial, Marshall renewed his objection to
the admission of this evidence, arguing that the evidence should
be excluded under Alaska Evidence Rule 403. Marshall argued that
the evidence was confusing, irrelevant, and prejudicial pointing
out that the court had dismissed the count charging him with
intending to deliver the hydrocodone and contended that the
possession of a legal prescription, without more, offered no
reasonable inference of an intent to sell. Nevertheless, Judge
Suddock found that the evidence was relevant, that any confusion
could be cured without precluding submission of the evidence, and
that the evidence was not unduly prejudicial.
On appeal, the State concedes that the hydrocodone and
diazepam evidence should have been excluded under Rule 403. But
the State argues that admitting the evidence was harmless error
under Love v. State22 because Marshall was acquitted on the count
alleging that he intended to deliver the remaining Oxycontin
pills in his possession.
The State points out that while this evidence
satisfies the first requirement announced in Clark v. State23 for
evidence offered as proof of intent under Evidence Rule 404(b)(1)
that to admit other conduct evidence to show intent requires that
intent be contested the evidence fails to satisfy the second
requirement that the other conduct be similar to the charged
conduct.24 The State claims that the other conduct is dissimilar
because, while Marshalls intent regarding the [Oxycontin] pills
remaining in his possession could be readily inferred from his
having actually delivered the nineteen pills to Officer Haas,
Marshalls mere possession of some portion of his other
prescriptions does not reflect on his intent with respect to the
[Oxycontin] that remained in his possession.
But we question whether the States concession that the
evidence should have been excluded is well-taken, particularly in
light of Marshalls defense.25 Marshall did not attack the
evidence of his actus reus for the count charging the in-hand
delivery to the undercover officer. Instead, he contended that
the State could not prove beyond a reasonable doubt that he
knowingly delivered Oxycontin to the undercover officer, and
further suggested that these pills came from Clossey.
Clossey testified that Marshall went to Closseys house
and told Clossey that he needed money and was willing to sell
some of his prescriptions. Clossey further testified that he
never touched the pills delivered to the undercover police
officer or the cash given in exchange. The rapid depletion of
the other prescriptions, combined with Marshalls willingness to
sell the Oxycontin, as was confirmed by Closseys and Purcells
testimony, supported the States claim that Marshall engaged in a
knowing delivery.
However, even if it was error to admit this evidence,
we conclude the error was harmless. The jury acquitted Marshall
of possessing the balance of the Oxycontin with intent to sell.
Both Haas and Clossey testified that Marshall gave Haas the pills
in exchange for the cash from Haas. The Oxycontin prescription
was in Marshalls possession when he was arrested and the police
found the $600 cash under Marshalls seat. Marshall himself had
filled his Oxycontin prescription the same day as his arrest.
From our review of the record, we conclude that any arguable
error in admitting the challenged evidence was unlikely to have
affected the verdict.26
Why we reject Marshalls pro se claims
Marshall argues that his case should be dismissed
because the court did not conduct a preliminary hearing under
Alaska Criminal Rule 5. In Sproates v. State,27 we recognized
that, under Criminal Rules 5(e) and 5.1, ten days is the upper
limit on the length of time that an arrestee may be held in
custody before indictment or a preliminary examination.28
Marshall was held beyond that limit; under Sproates, the remedy
for this violation was to discharge Marshall, but not to dismiss
the charges.29 Because Marshall was indicted on December 5,
2003, the issue of the violation of Criminal Rule 5 was mooted.
Marshall next claims that Clossey and Haas solicited
his participation in the delivery in violation of AS
11.31.110(a). But to the extent that the police and informants
set up drug transactions, their conduct is justified.
Additionally, Marshall argues that he was arrested
without probable cause. This claim appears to be based on the
fact that the police did not obtain a Glass warrant to
electronically monitor and record the transaction.30 Marshall
claims that no Glass warrant was secured because police did not
have the probable cause necessary to secure it. And he argues
that police could not monitor the transaction with a safety wire
unless they had a Glass warrant.
We reject Marshalls claim. Marshalls delivery of the
pills to Haas in exchange for $600 cash established probable
cause for Marshalls arrest. And Marshall has provided no
authority that the use of a safety wire violates Glass so long as
the State does not rely on a recording produced with the use of
that safety wire.
Marshall also believes that he has been subject to a
vindictive prosecution. He objects to Closseys favorable
treatment, refers to being entrapped and the claim that there was
a lack of probable cause against him, and argues that he was
overcharged. However, the count for third-degree misconduct
involving a controlled substance was ultimately dismissed and he
was acquitted of one count of second-degree misconduct.
Consequently, any overcharging that occurred would be moot.
Similarly, Marshall argues that it was prosecutorial
misconduct for the State to move to enter the hydrocodone and
diazepam evidence as Rule 404(b) evidence after the count for
third-degree misconduct was dismissed. But we concluded above
that any error in admitting this evidence was harmless.
And again, Marshall repeats his claim that the court
erred in denying him a hearing on entrapment. But we upheld the
superior courts denial of a hearing above. Marshall also
contends that the court erred in allowing a speedy-trial
violation. But in Marshalls opening brief, he did not discuss
this issue in the argument section of his brief, and only
mentions the point in one sentence in its conclusion. (Criminal
Rule 45 and Mr. Marshalls constitutional right to a speedy trial
were violated under the [Six]th Amendment to the United States
Constitution.) And in the brief he did not discuss, let alone
analyze, the superior courts ruling denying his speedy-trial
claim. This is inadequate briefing.31
Why we reject Marshalls attack on his sentence
Marshall was convicted of second-degree misconduct
involving a controlled substance, a class A felony.32 Because
Marshall was a second-felony offender, he faced a presumptive10-
year term under the pre-March 2005 sentencing code.33
Marshall contended three statutory mitigating factors
applied: (1) AS 12.55.155(d)(9) (his conduct in committing the
offense was among the least serious within the definition of the
offense); (2) AS 12.55.155(d)(13) (the harm caused by his crimes
has been consistently minor and inconsistent with a substantial
period of imprisonment, now numbered (d)(12) in the current
code); and (3) AS 12.55.155(d)(14) (the offense involved a small
quantity of a controlled substance, now numbered (d)(13) in the
current code).
Marshall argued that his conduct was among the least
serious in the definition of the offense for three reasons.
First, the Oxycontin was only delivered to a police officer, and
thus the pills were not released to the general public. Second,
this was a single sale. Third, the pills came from a valid
prescription, no weapons were involved in their delivery, the
police decided their quantity and price, Marshall never attempted
to escape, and he did not have any items commonly used by drug
dealers, that is, he did not possess any cell phones, pagers,
paraphernalia, weapons, or packaging materials.
Next, Marshall argued that the harm caused by his
offenses was minor. He pointed out that his prior felony
conviction was for the possession and sale of $40 of cocaine and
that this conviction was 10 years old. He also added that his
most recent misdemeanor convictions involved minor harm and short
sentences.
Finally, Marshall argued that under Knight v. State,34
his present offense involved a small quantity of a controlled
substance nineteen pills of Oxycontin. He claimed that multiple
sales of Oxycontin pills were typical and contrasted this with
his own conduct based on its one-time nature. He also noted how
the pills were never consumed by anyone because they never made
it past the police, and how he ultimately received no monetary
gain from their sale.
Judge Suddock, however, found that Marshall had not
met his burden of proving the mitigating factors by clear and
convincing evidence. Judge Suddock found that the transaction
was a commercial deal with substantial monetary gain. He found
that the transaction was no more nor no less than the typical
transaction, and that he could not find that the consequences of
Oxycontin sales to the buying public in Anchorage are
consistently minor any more than we can say that the consequences
of crack cocaine, the 1993 offense, are consistently minor. He
likewise rejected Marshalls claim that the offense was among the
least serious because the pills were delivered to an undercover
officer so the pills did not get delivered to someone who would
actually use the drugs.
Under AS 12.55.155(f), Marshall bore the burden or
proving the mitigating factors by clear and convincing evidence.
We have reviewed Judge Suddocks findings
rejecting the mitigating factors, and conclude that those
findings are supported by the record. Given those findings,
Judge Suddock properly rejected the mitigating factors.35
Conclusion
The judgment of the superior court is AFFIRMED.
_______________________________
1 AS 11.71.020(a)(1) (delivery of a schedule IA controlled
substance, Oxycodone).
2 447 F.2d 903, 905-06 (5th Cir. 1971).
3 Hampton v. United States, 425 U.S. 484, 489-90; 96 S. Ct.
1646, 1650; 48 L. Ed. 2d 113 (1976).
4 550 P.2d 830, 844-45 (Alaska 1976).
5 678 P.2d 423, 424-25 (Alaska App. 1984).
6 585 P.2d 514, 521-22 (Alaska 1978).
7 704 P.2d 794, 796-97 (Alaska App. 1985).
8 766 P.2d 41, 43-45 (Alaska App. 1988).
9 Id. at 43 (emphasis added).
10 152 P.3d 474 (Alaska App. 2007).
11 Id. at 480.
12 Id. at 481 (citing 5C Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure 1368, at 255 (3d ed.
2004).
13 Alaska R. Crim. P. 16(c)(5).
14 See State v. Garrison, 171 P.3d 91, 94 (Alaska 2007);
Ha v. State, 892 P.2d 184, 190 (Alaska App. 1995).
15 670 P.2d 357, 360-63 (Alaska 1983).
16 Id. at 361.
17 439 U.S. 128, 132-34, 99 S. Ct. 421, 424-25, 58 L. Ed.
2d 387 (1978).
18 Waring, 670 P.2d at 363.
19 Id.
20 See also American Bar Association, Standards for
Criminal Justice: Discovery and Trial by Jury 11-2.1(a)(ii)
cmt., at 1120 (2d ed. 1980) ([T]he discoverability of the
[defendants] statement does not depend upon its written or oral
form. ... For example, the statement is discoverable even if made
before or during the alleged offense, [or] even if exculpatory,
[or] even if made to a third party rather than to prosecution or
police personnel.).
21 AS 11.71.020(a)(1) and AS 11.71.030(a)(1),
respectively.
22 457 P.2d 622, 634 (Alaska 1969).
23 953 P.2d 159 (Alaska App. 1998).
24 Id. at 162.
25 See Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972)
(holding that in criminal cases, an appellate court must
independently evaluate the governments concession of error).
26 Cf. Love, 457 P.2d at 629-31.
27 81 P.3d 301 (Alaska App. 2003).
28 Id. at 301-03.
29 Id. at 303-04.
30 See State v. Glass, 583 P.2d 872, 881 (Alaska 1978),
modified on rehg, 596 P.2d 10 (Alaska 1979) (holding that the
Alaska Constitution requires police to obtain judicial
authorization before secretly recording a persons private
conversations).
31 See Petersen v. Mutual Life Ins. Co. of N.Y., 803 P.2d
406, 410 (Alaska 1990) (Where a point is not given more than a
cursory statement in the argument portion of a brief, the point
will not be considered on appeal.).
32 See former AS 11.71.020(c).
33 Former AS 12.55.125(c)(3).
34 855 P.2d 1347 (Alaska App. 1993).
35 See Michael v. State, 115 P.3d 517, 519 (Alaska 2005)
(holding that it is a question of law whether given facts
establish a statutory mitigating factor).
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