Opinion
Court of Appeals No. A-11070 No. 6226
08-19-2015
JONATHAN W. McGRAW JR., Appellant, v. STATE OF ALASKA, Appellee.
Appearances: David A. Graham, Graham Law Firm, Sitka, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law. Trial Court No. 1SI-09-437 CR
MEMORANDUM OPINION
Appeal from the Superior Court, First Judicial District, Sitka, David V. George and Philip M. Pallenberg, Judges. Appearances: David A. Graham, Graham Law Firm, Sitka, for the Appellant. Terisia K. Chleborad, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Jonathan W. McGraw Jr. was convicted of possessing one ounce or more of marijuana for purposes of distribution, and of maintaining a building for use in a controlled substance felony offense. He challenges his convictions on more than a dozen grounds. For the reasons explained in this opinion, we conclude that none of McGraw's arguments have merit. However, given the facts of McGraw's case, he is entitled to a merger of his two convictions under our recent decision in Rofkar v. State, 305 P.3d 356 (Alaska App. 2013).
Underlying facts
On November 11, 2009, the Sitka police applied for a warrant to search the property at 1204 Beardsley Way, where McGraw lived. This was a fenced compound comprising four structures. One of these buildings ("Building 1") was a fifth-wheel trailer; this trailer was connected to an associated out-building ("Building 2") by an elevated walkway. Located behind the trailer and the out-building were two Conex storage containers ("Building 3" and "Building 4").
The Sitka police executed the search warrant on November 30th. When the police arrived at the property, a man named Vincent Peters was the only person there. Peters told the officers that he was taking care of McGraw's dogs while McGraw was out of town.
In the fifth-wheel trailer (Building 1), the police found a plastic bag containing 4.3 grams of marijuana sitting on top of a stool placed on a La-Z-Boy chair. The officers also found $100 in cash and a scale.
The associated out-building (Building 2) contained McGraw's living area, with a couch, a dresser, some book shelves, and a computer. On this dresser, the police found a tray with scissors (apparently, the type of scissors used for trimming plants) and some mason jars. In the back of this living area, there was a curtain that served as a partition to a second room. This second room was a hydroponic grow-room; it was outfitted with grow lights, a thermostat, and a charcoal filtration ventilation system.
This grow-room in Building 2 contained 15 marijuana plants, as well as 61.9 grams of marijuana (roughly 2.18 ounces) divided into quarter-ounce bags that were sitting in an open safe. The safe also contained $400 in cash. Nearby was a wastebasket containing stems that had been ripped from processed marijuana plants. An adjoining closet contained partially processed marijuana that was hanging to dry.
The officers also found numerous pieces of evidence in the trailer and the out-building that linked McGraw to the residence: photographs of McGraw, a photo album with McGraw's name written on the cover, McGraw's fishing permits, a collection of "High Times" magazines addressed to McGraw, miscellaneous mail addressed to McGraw, and prescription medications bearing McGraw's name.
Building 3 (one of the two Conex containers) was divided into three sections. The front section contained buckets filled with the stumps and roots of marijuana plants and the remains of recently harvested marijuana. The middle and back rooms contained numerous marijuana plants in various stages of growth. Some of the plants were being grown in soil, while other were being grown hydroponically. Building 4 (the other Conex container) had a similar layout to Building 3, and it also contained numerous marijuana plants.
All told, the police seized 102 marijuana plants from the out-building and the two Conex containers (Buildings 2, 3, and 4).
A grand jury indicted McGraw on four counts of fourth-degree controlled substance misconduct. Count I charged McGraw with knowingly manufacturing, delivering, or possessing one ounce or more of marijuana with the intent to distribute. Count II charged McGraw with knowingly possessing one pound or more of marijuana. Count III charged McGraw with maintaining a structure for use in a felony drug offense. And Count IV charged McGraw with knowingly possessing 25 or more marijuana plants.
AS 11.71.040(a)(2).
AS 11.71.040(a)(3)(F).
AS 11.71.040(a)(5).
AS 11.71.040(a)(3)(G).
Count II of the indictment was dismissed for reasons unrelated to this appeal. The superior court dismissed Count IV of the indictment in the middle of McGraw's trial, after the State declined to grant immunity to two witnesses who purportedly would have testified that the marijuana found in Buildings 3 and 4 belonged to them, and not to McGraw.
The jury convicted McGraw of the two remaining counts: Counts I (possession with intent to distribute) and III (maintaining a building).
The search warrant application
After McGraw was indicted, he asked the superior court to suppress the evidence obtained under the search warrant. McGraw asserted that the search warrant application contained several significant misstatements and omissions, and that the warrant was therefore invalid. In order to evaluate McGraw's claims regarding these alleged misstatements and omissions, we must describe the contents of the search warrant application.
(a) The contents of the search warrant application
Sitka Police Detective Kyle Ferguson applied for the search warrant. In his application, Ferguson relied on information obtained by another officer, Dayton Long, as well as information supplied by three confidential informants.
According to the warrant application, Officer Long visited McGraw's residence on November 9, 2009, in response to a complaint about a barking dog. Long reported that, while he was on the property, he could smell the odor of marijuana coming from the out-building (Building 2). Long was approximately seven to ten yards from the out-building when he smelled the marijuana.
Officer Long also noticed a power cord running from the fifth-wheeler (i.e., Building 1) to the out-building.
Detective Ferguson had extensive drug investigation experience. Based on this experience, and based on Long's description of the strength of the marijuana smell, Ferguson concluded that McGraw possessed an amount of marijuana that exceeded the typical amount used for personal use.
We now turn to the information that Detective Ferguson received from the confidential informants.
Informant #1 told Ferguson that he had visited the residence at 1204 Beardsley Way (where McGraw lived) and that he had purchased small quantities of marijuana from McGraw's housemate (i.e., Vincent Peters) around a dozen times.
Informant #1 told Ferguson about an occasion in December 2008 when he helped McGraw and Peters clip the buds from dried marijuana plants. Informant #1 did not see where the plants were being grown, but he explained that McGraw left the room and then returned with the dried plants. On this same day in December 2008, Informant #1 observed McGraw manufacturing hashish from the stems and leaves of marijuana plants.
The next informant, Informant #2, told Ferguson that McGraw was growing marijuana in the Conex storage units on the Beardsley Way property (Buildings 3 and 4). According to Informant #2, each Conex contained 30 to 90 plants. Informant #2 stated that these units were ventilated through the floor, possibly through a charcoal ventilation system, and that some of the marijuana plants were watered by hand, while other plants were grown hydroponically.
Ferguson told the court that Informant #2 had acquired this information about one year previously, both from personally viewing the growing sites and through conversations with McGraw.
The third informant, Informant #3, visited the Beardsley Way property twice in July 2009 (i.e., about four months before the search warrant application). Informant #3 told Ferguson that he went there because he was interested in obtaining a job with McGraw. Inside the trailer (i.e., Building 1), Informant #3 saw drug paraphernalia and a bag of marijuana.
During Informant #3's visits to the residence, McGraw gave him tours of his marijuana growing operation, and Informant #3 saw numerous plants in the out-building (Building 2) and in one of the Conex storage units. McGraw told Informant #3 that he normally was able to harvest around 8 ounces of marijuana per plant, and that he was making tens of thousands of dollars from his operation, selling the marijuana in Juneau and on an island in Southeast Alaska.
In addition to the information provided by Officer Long and the three confidential informants, Detective Ferguson also told the court about the electricity usage at the Beardsley Way property.
The local utility company was providing electricity to the property under two separate accounts; one account was in the name of Southeast Earthmovers, and the other was in the name of Joshua McGraw (Jonathan McGraw's brother).
The Southeast Earthmovers account was drawing an average of 83 kilowatt hours per day, and the Joshua McGraw account was drawing approximately 56 kilowatt hours per day, for a total of nearly 140 kilowatt hours per day. According to Detective Ferguson, the average Sitka family residence with electrical heat uses approximately 35 kilowatt hours of electricity per day. Thus, the property was using almost four times the residential average.
(b) The litigation in the superior court
In the superior court, McGraw argued that the search warrant application was flawed because of several purported misstatements and omissions. And in this appeal, McGraw repeats all of these arguments — and he conclusorily asserts that all of these purported misstatements and omissions, in combination, require invalidation of the search warrant.
Specifically, McGraw claimed that the warrant was flawed because:
(1) Detective Ferguson failed to tell the magistrate that the Sitka Police Department had a policy not to investigate complaints about barking dogs (which was the stated reason why Officer Long visited the property);
(2) Ferguson failed to disclose that Informant #2 had previously provided him with information about McGraw harvesting marijuana that proved to be false;
(3) Ferguson failed to disclose that McGraw had brought a civil suit against the Sitka Police Department and Ferguson;
(4) Ferguson failed to disclose that McGraw had reported to the chief of the Sitka Police Department that Ferguson was dealing heroin;
(5) Ferguson failed to disclose that Officer Long's police report did not mention that Long smelled marijuana at McGraw's property;
(6) Ferguson falsely stated that he was not in the same location as Officer Long when he visited the property (according to McGraw, this was important because, if the two officers were in the same location, and if Long had smelled growing marijuana, then Ferguson should have been able to smell it too); and
(7) Ferguson falsely told the court that he 'wasn't nosy" when he briefly searched McGraw's property with McGraw's consent.
But with one exception, McGraw makes no attempt to respond to the superior court's rulings on these matters — the superior court's findings, and its analysis of these issues. We therefore conclude that, with regard to all but one of McGraw's claims, his briefing is not adequate to preserve his claims on appeal.
See, e.g., Katmailand, Inc. v. Lake and Peninsula Borough, 904 P.2d 397, 402 n. 7 (Alaska 1995); Petersen v. Mutual Life Ins. Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Wren v. State, 577 P.2d 235, 237 n. 2 (Alaska 1978); Kristich v. State, 550 P.2d 796, 804 (Alaska 1976).
We now turn to the one claim that McGraw has adequately briefed. McGraw claims that the search warrant should be invalidated because Detective Ferguson failed to inform the magistrate of information that would have cast doubt on the credibility of Informant #2 — in particular, the fact that Informant #2 had previously provided false information about McGraw's marijuana growing.
When Detective Ferguson testified at the evidentiary hearing in the superior court, he conceded that, when he applied for the search warrant, he failed to mention an incident that occurred on June 26, 2008 — what we will call the "dandelion" incident.
On that date, Ferguson personally visited the McGraw residence because Informant #2 had called him and reported that he had driven past the residence and had seen McGraw with recently harvested marijuana plants. Ferguson testified that he went to the residence some 20 to 30 minutes after receiving this call from Informant #2, but he found McGraw with a container filled with dandelions, not marijuana. With McGraw's consent, Ferguson then conducted a limited search of the property — although McGraw would not let him search the Conex containers.
When Ferguson applied for the search warrant, he told the magistrate that Informant #2 had provided reliable information on other occasions, including information that led to successful prosecutions. But Ferguson failed to mention the dandelion incident. Later, at the evidentiary hearing, when Ferguson was asked why he did not tell the magistrate about this earlier incident, Ferguson stated that he thought it would be "[i]nappropriately prejudicial" to bring up this incident, because McGraw had filed a civil suit against the Sitka Police Department based on this incident. According to Ferguson, this civil suit "would make [McGraw] look bad, and it didn't need to be brought up."
Ferguson also explained that he still did not know for sure whether Informant #2's information was correct or incorrect — because, conceivably, McGraw had time to conceal any marijuana before Ferguson arrived at the property. (Ferguson also stated that, even if Informant #2's tip was false, Ferguson did not know whether Informant #2 intentionally provided false information or whether he simply mistook McGraw's dandelions for marijuana.)
In response to Ferguson's testimony at the evidentiary hearing, McGraw's attorney called Jeremy Pittser to the stand. Pittser revealed that he was Informant #2. Pittser told the superior court that he did indeed call Detective Ferguson on June 26, 2008 to report that he saw McGraw transporting marijuana in a wheelbarrow. However, Pittser denied ever telling Ferguson that he personally observed a marijuana growing operation on McGraw's property. Pittser told the court that the detailed information he gave to Ferguson about McGraw's marijuana operation was information that he obtained second-hand. (Pittser explained that he and McGraw had not been close for around six years, after McGraw found out that Pittser had slept with McGraw's ex-wife.)
After hearing this testimony, Superior Court Judge Philip M. Pallenberg found that Detective Ferguson had acted recklessly when, in his search warrant application, he failed to give the magistrate full information about the dandelion incident. Judge Pallenberg noted that, when Ferguson applied for the warrant, Ferguson told the magistrate that Informant #2 had "proved to be reliable". This assertion, Judge Pallenberg concluded, was not entirely accurate, given the dandelion incident.
Because Judge Pallenberg found that Detective Ferguson recklessly omitted this information about the dandelion incident, the judge's duty under State v. Malkin, 722 P.2d 943, 946 (Alaska 1986), was to re-evaluate the search warrant application with this omitted information added in.
Judge Pallenberg found that, even with this added impeachment of Informant #2's reliability, there was still probable cause to issue the warrant. The judge noted in particular (1) the fact that Officer Long smelled the growing marijuana, (2) Detective Ferguson's testimony that an observable smell under those circumstances is usually indicative of commercial quantities of marijuana, (3) the incriminating information supplied by the other informants, and (4) the high quantity of electricity consumed at the Beardsley Way property.
After Judge Pallenberg issued this ruling, McGraw filed a second suppression motion. In this second motion, McGraw argued that Ferguson had intentionally misstated the facts in the search warrant application when he told the magistrate that Informant #2 (i.e., Jeremy Pittser) had first-handknowledge of McGraw's marijuana growing operation. McGraw argued that Pittser's own testimony at the evidentiary hearing showed that Ferguson must have intended to mislead the magistrate when he said that Informant #2 had personal knowledge of McGraw's criminal activities.
(Under Malkin, if Ferguson had indeed intended to mislead the magistrate, this would require suppression of the evidence regardless of whether the remainder of the search warrant application established probable cause. See Lewis v. State, 862 P.2d 181, 186-87 (Alaska App. 1993), and Gustafson v. State, 854 P.2d 751, 758 n. 2 (Alaska App. 1993) — both holding that, for purposes of applying the Malkin suppression rule, a police officer's conscious misstatement or omission in a search warrant application is "intentional" only if it was done in a "deliberate attempt to mislead" the issuing magistrate.)
Judge Pallenberg denied McGraw's second motion. The judge found that Pittser was probably telling the truth when, at the suppression hearing, he testified that he did not have first-hand knowledge of McGraw's marijuana growing operation. Judge Pallenberg reasoned that McGraw was unlikely to have given Pittser a personal tour of his marijuana operation, considering the tumultuous relationship between the two men.
However, Judge Pallenberg also found that it was quite possible that Pittser told Ferguson that his knowledge of the marijuana operation was first-hand, in order to curry favor with Ferguson — or that when Pittser spoke with Ferguson, he simply was not clear about the source of his information, and "Ferguson simply assumed that Mr. Pittser had personal knowledge." The judge found that either of these two scenarios was more likely than the possibility that Ferguson "intentionally misstated the facts."
Based on these findings, Judge Pallenberg concluded that Ferguson had not acted "intentionally" (as that term is used in Malkin litigation), but rather that Ferguson had acted with "reckless disregard for the truth" when he failed to "ascertain[] the basis of Mr. Pittser's knowledge of the [marijuana] grow, and ... [to] ensur[e] that [his] answer to [the magistrate's] question was accurate."
Judge Pallenberg then re-evaluated the sufficiency of the search warrant application, with all the information obtained from Informant #2 excised from the application. But again, even with this redaction, Judge Pallenberg found that probable cause still existed to support the search warrant, so he denied McGraw's second suppression motion.
(c) McGraw's arguments on appeal
McGraw challenges Judge Pallenberg's rulings on a number of grounds.
First, McGraw challenges the judge's finding that Detective Ferguson's misstatements / omissions in the search warrant application were not made intentionally. Specifically, McGraw contends that Judge Pallenberg failed to follow the rule set forth in State v. Malkin that, once a statement of fact in a search warrant application is shown to be false, it is the State's burden to prove that the misstatement was not made intentionally or with reckless disregard for the truth. McGraw contends that Judge Pallenberg impermissibly switched the burden of proof, requiring McGraw to affirmatively prove that Ferguson's misstatement was intentional.
722 P.2d 943, 946 (Alaska 1986).
But the record shows that Judge Pallenberg understood Malkin and faithfully applied it. McGraw challenged Ferguson's statements about Informant #2's basis of knowledge. The judge found that those statements were false — that they were misstatements. The judge then required the State to prove that these misstatements were neither intentional nor reckless. Based on the evidence, the judge found that the State had met its burden of proving that the misstatements were not intentional, but that the State had failed to meet its burden of proving that Ferguson's misstatements were not reckless.
McGraw argues in the alternative that even if Judge Pallenberg did place the burden of proof on the State, the judge was clearly erroneous when he found that Ferguson's misstatements were not intentional.
This question turns on issues of fact and witness credibility. Given the evidence presented to him, Judge Pallenberg could reasonably conclude that Detective Ferguson had not acted "intentionally" for Malkin purposes — that the detective had not acted with the deliberate intention of misleading the magistrate. We therefore uphold Judge Pallenberg's ruling on this issue as not clearly erroneous.
McGraw next argues that even if Judge Pallenberg was correct in finding that Ferguson's misstatements were only reckless, and not intentional, the judge nevertheless committed error when he ruled that the remaining evidence (after redacting the reckless misstatements) still supported the issuance of the search warrant.
McGraw's argument on this point is flawed in two respects. First, when he contends that the remaining evidence is insufficient to support the warrant, he views the evidence in the light most favorable to himself. Second, McGraw continues to insist that all of the remaining evidence should be viewed with distrust because "Ferguson lied to the [magistrate] when he recklessly misstated material fact." But Judge Pallenberg expressly found that Detective Ferguson did not "lie" to the magistrate — that he did not seek to mislead the magistrate.
Having independently reviewed the search warrant application, with the information supplied by Informant #2 redacted, we agree with Judge Pallenberg that the remaining information supports the issuance of the search warrant.
McGraw next argues that even if (1) Judge Pallenberg was correct in finding that Ferguson's misstatements were only reckless, not intentional, and even if (2) the remainder of the information in the search warrant application still supported the issuance of the warrant, this Court should nevertheless strike down the search warrant. McGraw asserts that "[i]f the rule of law in Alaska allows warrants to be upheld even where reckless misstatements of fact are used to obtain [them], that law should be overruled."
But the legal rule that McGraw refers to is the one adopted by our supreme court in Malkin. This Court has no authority to overrule a decision of the supreme court, even if we were convinced that the decision was wrong — which we are not.
Finally, McGraw argues that even if the search warrant remains valid after proper analysis under the exclusionary rule, this Court should still strike down the warrant under Alaska Evidence Rule 412. McGraw claims that Evidence Rule 412 provides an independent basis for suppressing evidence, wholly apart from the exclusionary rule arising from the Fourth Amendment to the Federal Constitution or the search and seizure provision of the Alaska Constitution (Article I, Section 14).
This is incorrect. Evidence Rule 412 is not a separate basis for suppressing illegally obtained evidence. Rather, Evidence Rule 412 codifies Alaska's exclusionary rule. See, e.g., Waring v. State, 670 P.2d 357, 360 (Alaska 1983); Harker v. State, 663 P.2d 932, 935 (Alaska 1983). Thus, when the Alaska Supreme Court recognizes an exception to the exclusionary rule under Alaska law, that exception applies to Evidence Rule 412.
See, e.g., Smith v. State, 948 P.2d 473, 478 (Alaska 1997) (recognizing the inevitable discovery exception under Alaska law); Cruse v. State, 584 P.2d 1141, 1145 (Alaska 1978) (recognizing the independent source exception under former Criminal Rule 26(g), the precursor to Evidence Rule 412); see also Anderson v. State, 91 P.3d 984, 988 (Alaska App. 2004) (applying the inevitable discovery exception to an inventory search); Starkey v. State, 272 P.3d 347, 350-52 (Alaska App. 2012) (affirming the validity of the independent source doctrine under Alaska law).
For all these reasons, we reject McGraw's attacks on the search warrant.
McGraw's claim that the trial judge should not have allowed the State to present the testimony of Stephen Bacon, and should not have allowed the State to play a portion of Bacon's recorded interview with the police
When the police searched McGraw's residence, they found a CD that contained a photograph depicting McGraw and a man named Stephen Bacon working together to clip leaves from marijuana plants. Detective Ferguson arranged an interview with Bacon.
During this interview, Ferguson asked Bacon if he knew about McGraw's marijuana growing operation. Bacon replied that he had heard (second-hand) that McGraw was growing marijuana, but that he (Bacon) was not involved in any way. Bacon denied ever buying marijuana from McGraw, but he conceded that he had smoked marijuana with McGraw.
Ferguson then produced the photo showing McGraw and Bacon clipping leaves from marijuana plants together. Ferguson told Bacon that, based on this evidence, he could face felony charges. But Ferguson also told Bacon that he "[didn't] want to see [Bacon] get charged", and that if Bacon cooperated with the investigation, Ferguson would put in a good word for Bacon when the prosecutor made the decision whether to charge him.
In response to Ferguson's remarks, Bacon changed his story. Bacon told Ferguson that he had bought marijuana from both McGraw and McGraw's housemate a total of 40 or 50 times. Bacon said that he usually purchased quarter-ounce bags, and that these bags cost $130. According to Bacon, he made his last purchase in June or July of 2008.
With respect to the photograph, Bacon explained that he had come over to McGraw's house to smoke marijuana; when he arrived, he found McGraw clipping leaves from marijuana plants, so he decided to help. Bacon told Ferguson that he did not see where the marijuana plants came from, and that he did not know the specifics of how much marijuana McGraw had.
Bacon told Ferguson that McGraw kept the harvested marijuana in glass jars on top of his dresser, and that McGraw kept a scale inside his dresser. According to Bacon, McGraw pulled the scale out and weighed the marijuana for him.
Before trial, McGraw filed a motion objecting to Bacon's testimony under Evidence Rules 404 and 403. McGraw argued that Bacon's testimony was unreliable because it was the result of police pressure. He also argued that Bacon's testimony would constitute "propensity" evidence — that is, character evidence of the type barred by Evidence Rule 404(b)(1). Additionally, McGraw argued that even if Bacon's testimony was otherwise admissible, it should be excluded under Evidence Rule 403 because it was unfairly prejudicial.
The superior court denied McGraw's motion. The court concluded that Bacon's testimony was not barred by Evidence Rule 404(b)(1) or Evidence Rule 403, and that, to the extent Bacon might be testifying to avoid being prosecuted himself, this was a matter for cross-examination. (The court did, however, tell McGraw's attorney that he could renew his objection if there were specific details of Bacon's testimony that should be excluded as unfairly prejudicial.)
Later, when Bacon was called to testify at McGraw's trial, he testified that he purchased marijuana from McGraw three to five times, and that these purchases occurred in McGraw's trailer. Bacon recounted one instance when he asked to buy marijuana from McGraw: McGraw pulled a quarter-ounce of marijuana from a Mason jar, and Bacon paid $130 for this quarter-ounce. Bacon added that he and McGraw often smoked marijuana together in McGraw's trailer, without any money changing hands.
Bacon also testified about the day on which the photograph was taken, when he helped McGraw clip leaves from marijuana plants.
The prosecutor confronted Bacon with his prior statement to Detective Ferguson, in which he claimed to have purchased marijuana from McGraw and his housemate "40 to 50 times". Bacon replied that this was a misstatement. According to Bacon, his reference to "40 to 50 times" included purchases that he made from other people, and that he only purchased marijuana from McGraw three to five times. The prosecutor also questioned Bacon about some other alleged inconsistencies between Bacon's testimony and his pre-trial interview: whether Bacon had seen a digital scale in McGraw's trailer; whether he had seen McGraw weigh marijuana with this scale, using a plastic cup; and how many plants were present when he assisted McGraw in trimming the harvested marijuana.
Later, the prosecutor asked the court to let the State introduce a short excerpt of the video recording of Bacon's interview with Ferguson: the portion where Bacon described seeing McGraw weigh marijuana with a digital scale. McGraw objected, arguing that introduction of any portion of the interview would violate McGraw's confrontation rights. McGraw also objected that the designated portion of the interview was not actually inconsistent with Bacon's trial testimony and that it was unclear whether Bacon had been discussing McGraw or someone else when he spoke to Ferguson about the scale.
After the trial judge personally reviewed the excerpt in question, the judge overruled McGraw's objections. The judge concluded that it was reasonable to infer (in fact, the judge found it was clear) that Bacon was referring to McGraw, and that Bacon's pre-trial statement about seeing McGraw use the scale was inconsistent with Bacon's trial testimony. With regard to McGraw's confrontation clause objection, the judge noted that McGraw had already had the opportunity to cross-examine Bacon, and the judge assured McGraw that Bacon would remain under subpoena, so that McGraw could call Bacon to the stand again if he wanted.
On appeal, McGraw argues that Bacon's testimony was "constitutionally unreliable" because the testimony was the fruit of coercion — to wit, Ferguson's statement to Bacon that he might be prosecuted for his complicity in McGraw's marijuana activities (as evidenced by the photograph) unless he cooperated with the authorities.
To the extent that Bacon testified as a State's witness to avoid being charged with a crime himself, we agree with the superior court that this was a potential ground for impeaching Bacon's testimony, but not a legal bar to the admission of his testimony. As the en banc Fifth Circuit observed in United States v. Cervantes-Pacheco, 826 F.2d 310 (5th Cir. 1987):
No practice is more ingrained in our criminal justice system than the practice of the government calling a witness who is an accessory to the crime for which the defendant is charged and having that witness testify under a plea bargain that promises him a reduced sentence. It is difficult to imagine a greater motivation to lie than the inducement of a reduced sentence, but courts uniformly hold that such a witness may testify so long as the government's bargain with him is fully ventilated so that the jury can evaluate his credibility... .Id. at 315 (footnote omitted). More generally, see our discussion of this and related matters in Jacobs v. State, 953 P.2d 527, 530-33 (Alaska App. 1998) (holding that the law does not bar the testimony of an informant who is promised a fee that is contingent on the outcome of the case).
McGraw also argues that Bacon's testimony was the kind of "propensity" evidence that is barred by Evidence Rule 404(b)(1). But as the trial judge noted in his ruling, Bacon's testimony about McGraw's marijuana business was relevant for non-propensity purposes — specifically, to establish that McGraw possessed the marijuana with the intent to sell or otherwise distribute it. The evidence was therefore not barred by Rule 404(b)(1).
McGraw next argues that even if Bacon's testimony was admissible under Rule 404(b)(1), the trial judge should have excluded Bacon's testimony under Evidence Rule 403 because its probative value was outweighed by its potential for unfair prejudice.
The trial judge rejected this argument and allowed the State to present this testimony. We must affirm the trial judge's ruling unless we are convinced that it was an "abuse of discretion" — that is, clearly untenable or unreasonable.
Howard v. State, 239 P.3d 426, 429 (Alaska App. 2010).
Here, the trial judge's ruling was reasonable. McGraw was charged with possessing marijuana with intent to distribute, and with maintaining a building for use in felony drug offenses. Bacon's testimony was probative of McGraw's intent to distribute marijuana and of McGraw's keeping a building for this purpose.
The fact that McGraw's intent was revealed by evidence of past wrongdoing — specifically, his prior marijuana sales to Bacon, and his acceptance of Bacon's assistance in harvesting marijuana — did not give rise to unfair prejudice. In this context, "unfair prejudice" refers to evidence that has an undue tendency to prompt the jury to decide the case on an improper basis — generally (although not necessarily) an emotional one. It was not improper for the jury to consider evidence of McGraw's past marijuana sales and his marijuana growing activities when the jury decided whether the State had proved that McGraw possessed the marijuana with intent to distribute it, and that McGraw maintained a building for this purpose.
Johnson v. State, 268 P.3d 362, 367 (Alaska App. 2012).
McGraw next argues that his right of confrontation was violated when the trial judge allowed the State to play a portion of Bacon's video-recorded pre-trial statement to Ferguson.
McGraw presents this "argument" in a single conclusory sentence. It is therefore inadequately briefed. It is also frivolous: Bacon took the stand at McGraw's trial, and McGraw was able to cross-examine him. McGraw therefore was accorded his right of confrontation. In addition, as we explained above, the superior court expressly kept Bacon under subpoena so that McGraw could recall Bacon and examine him about any arguably new matters revealed in the excerpted portion of his pre-trial statement.
See Wagner v. Wagner, 218 P.3d 669, 678 (Alaska 2009); Petersen v. Mutual Life Insurance Co. of New York, 803 P.2d 406, 410 (Alaska 1990); Berezyuk v. State, 282 P.3d 386, 392 (Alaska App. 2012).
Finally, McGraw argues that it was improper to admit this portion of Bacon's pre-trial statement because (accordingto McGraw) it is not clear whether Bacon was referring to McGraw in that pre-trial statement.
As we explained above, the trial judge listened to the excerpt and concluded that it was clear that Bacon was referring to McGraw. But even if this matter was reasonably debatable, the trial judge's ruling was correct. Under Evidence Rule 104(b) (the rule dealing with conditional relevancy), the evidence was admissible as long as a reasonable jury could conclude that Bacon was referring to McGraw.
For these reasons, we uphold the trial judge's rulings allowing Bacon to testify at McGraw's trial, and allowing the State to present an excerpt of Bacon's recorded pre-trial statement.
McGraw's claim that the superior court should have dismissed all of the charges against him because the State refused to grant transactional immunity to McGraw's brother Joshua and McGraw's friend Vincent Peters
At trial, McGraw called his brother Joshua to the stand, but Joshua asserted his privilege against self-incrimination, and the trial judge upheld this claim of privilege. McGraw also stated that he wished to call Vincent Peters to the stand (the friend who was watching McGraw's residence and taking care of his dogs when the police arrived to serve the search warrant), but Peters also successfully claimed his privilege against self-incrimination.
After the superior court ruled that these two witnesses could not be called by the defense because of their privilege against self-incrimination, McGraw asked the court to dismiss all counts of the indictment unless the State granted immunity to these two witnesses.
In support of this motion, McGraw made offers of proof regarding what Joshua McGraw and Vincent Peters would say if they were to testify.
According to McGraw, his friend Peters would testify that he (Peters) was the owner of the marijuana plants found in Building 4 (one of the Conexcontainers), and that he was also the owner of the nine quarter-ounce bags of marijuana and the $400 found in the safe in the out-building (Building 2), as well as the single bag of marijuana that was found on the stool in the trailer (Building 1). And, according to McGraw, his brother Joshua would testify that he was the owner of the marijuana plants found in Building 3 (the other Conex container).
In other words, McGraw told the superior court that these two witnesses (between them) would claim responsibility for essentially all of the illegal drug activity occurring at the Beardsley Way property.
The State declined to grant immunity to either Joshua McGraw or to Vincent Peters. After being apprised of the State's decision, the superior court dismissed one of the three remaining counts of the indictment.
Specifically, the superior court concluded that the State's refusal to grant immunity to Joshua McGraw and Vincent Peters required dismissal of Count IV of the indictment (the count alleging possession of 25 or more marijuana plants) under this Court's decisions in State v. Echols, 793 P.2d 1066 (Alaska App. 1990), and State v. Cogdill, 101 P.3d 632, 634-35 (Alaska App. 2004).
And for this same reason, the superior court also ruled that the State would not be allowed to rely on the marijuana found in the two Conex containers (Buildings 3 and 4) to prove McGraw's possession of marijuana for purposes of determining McGraw's guilt of the remaining two counts: Count I (possession with intent to distribute) and Count III (maintaining a building). However, the superior court declined to dismiss Counts I and III because, according to the court, there was still "plenty of evidence independent of what was [found] in [the two] Conexes" to support those two charges.
On appeal, McGraw argues that the superior court's ruling did not go far enough, and that the court should have dismissed all three of the charges against him, given the State's refusal to grant immunity to his brother Joshua and to his friend Vincent Peters.
We conclude that the superior court correctly refused to dismiss Count I and Count III. (The State has not cross-appealed the superior court's decision to dismiss Count IV, so we will not address whether that ruling was correct.)
We do not question the superior court's ruling that Joshua McGraw and Vincent Peters could validly claim the privilege against self-incrimination to avoid being called as witnesses by McGraw. According to McGraw's offer of proof, each of these men would claim responsibility for some portion of the marijuana activities occurring at the property.
But courts are often faced with situations where an apparent accomplice in a criminal scheme indicates that, but for their Fifth Amendment privilege, they would take the stand and give testimony that would absolve other alleged participants in the scheme. As this Court observed in Cogdill v. State, if trial courts forced the State to grant transactional immunity in these circumstances, this "would likely engender collusion and witness-tampering". 101 P.3d at 635-36.
Quoting Blair v. State, 42 P.3d 1152, 1155-56 (Alaska App. 2002).
In other words, there is a distinct danger that such a witness, after receiving transactional immunity for the crimes revealed by their testimony, would falsely claim sole responsibility for the offenses being litigated, thereby leading to the defendant's acquittal — and also leaving the State unable to prosecute the witness who now claims sole responsibility.
For this reason, our decision in Cogdill places restraints on a trial judge's authority to put the State to the choice of either granting immunity to proposed defense witnesses or facing dismissal of criminal charges. Cogdill holds that a trial court is not authorized to do this unless the defendant shows two things.
First, the defendant must show that the witness's proposed testimony is crucial to the outcome of the defendant's trial — that the proposed testimony would manifestly lead to the defendant's acquittal, and that the absence of this testimony would undermine the fundamental fairness of the trial. Id. at 635-36. Second, the defendant must show that the State has no valid reason for refusing to extend immunity to the witness. Ibid.
It appears from the record in McGraw's case that neither prong of this test was satisfied.
The fact that Joshua McGraw and Vincent Peters would claim responsibility — even sole responsibility — for the illegal marijuana activities occurring at the Beardsley Way property was not the kind of testimony that would manifestly lead to McGraw's acquittal. The growing and selling of marijuana is an activity that can be jointly conducted by two or more people. The fact that McGraw's brother and McGraw's friend might be guilty of this conduct does not rule out McGraw's own complicity in these same illegal activities.
True, both men were apparently willing to assert that they bore sole responsibility for the marijuana. But given McGraw's close relationship with both witnesses, and given the fact that McGraw lived on the property, it is far from obvious that the two men's claims of sole responsibility would have led to McGraw's acquittal. The jury might have disbelieved these witnesses' assertions that McGraw had nothing to do with the marijuana activities that were occurring on the property where he lived.
See Blair v. State, 42 P.3d 1152, 1155 (Alaska App. 2002) (holding that the recantation of a domestic violence victim was not the kind of evidence that would manifestly lead to the defendant's acquittal).
Second, the State obviously had valid reasons for declining to extend transactional immunity to Joshua McGraw and Vincent Peters. Both men claimed to be engaged in felony-level marijuana offenses.
Accordingly, the superior court correctly denied McGraw's motion to dismiss Counts I and III.
McGraw's attack on the foundational "chain of custody" needed to establish the admissibility of the physical evidence seized during the execution of the search warrant
Detective Ferguson was the officer who supervised the execution of the search warrant at the Beardsley Way property, and he was the trial witness who identified the physical evidence seized pursuant to that search warrant.
When Ferguson testified during the State's case-in-chief, he stated that he was present during the entire search warrant process. But during the defense case, McGraw called Ferguson to the stand again and asked him to clarify his whereabouts during the service of the search warrant. Ferguson conceded that he was absent from the property for a period of time — that he left to go to a physical therapy appointment. Ferguson nevertheless declared that he "personally examined ... every item that was seized", and that he personally "made the determination whether it was of evidentiary value or not, and needed to be seized."
On appeal, McGraw contends that, given Ferguson's concession that he was not physically present at the property at all times during the execution of the search warrant, the State failed to establish the "chain of custody" foundation necessary for the admission of the physical evidence seized pursuant to the search warrant. See Alaska Evidence Rule 901(a).
McGraw did not raise this contention in the trial court, so he now must demonstrate that plain error occurred — i.e., he must demonstrate that it would have been obvious to any competent judge or attorney that the State failed to establish the chain of custody for this evidence.
The fact that Detective Ferguson was not personally present throughout the entire search warrant process does not mean that the State failed to establish the necessary foundation for admission of the physical evidence. As this Court explained in Vann v. State, 229 P.3d 197, 211 (Alaska App. 2010), the "chain of custody" requirement of Evidence Rule 901(a) "does not require the State to bring forward every witness who had custody of, or contact with, the physical evidence in question, nor does it require the State to affirmatively negate every conceivable possibility of mishandling or tampering."
Citing Wright v. State, 501 P.2d1360,1372 (Alaska 1972), and Houston-Hult v. State, 843 P.2d 1262, 1266-67 (Alaska App. 1992).
The fact that Ferguson temporarily left the property to attend to personal business does not suggest that the officers who remained on the property mishandled the evidence or tampered with it. Accordingly, we conclude that McGraw has not shown plain error.
For these same reasons, we reject McGraw's related due process claim that his trial was rendered "fundamentally unfair" by Ferguson's testimony identifying the physical evidence.
The sufficiency of the evidence to support McGraw's convictions
As we explained earlier, the indictment against McGraw originally contained four counts. Count II was dismissed for reasons unrelated to this appeal. The superior court dismissed Count IV because the State declined to grant immunity to McGraw's brother and friend. This left Counts I and III — the charges that McGraw possessed one ounce or more of marijuana for purposes of distribution, and that McGraw maintained a building for use in a felony drug offense. The jury found McGraw guilty of both counts.
On appeal, McGraw argues that the evidence presented at his trial was legally insufficient (in various ways) to support the jury's verdicts. But McGraw's arguments hinge on viewing the evidence in the light most favorable to himself. When an appellate court evaluates the sufficiency of the evidence to support a guilty verdict in a criminal trial, we must view the evidence (and the inferences that could reasonably be drawn from that evidence) in the light most favorable to upholding the jury's verdict.
E.g., Dorman v. State, 622 P.2d 448, 453 (Alaska 1981); Spencer v. State, 164 P.3d 649, 653 (Alaska App. 2007).
Viewing the evidence at McGraw's trial in that light, we conclude that the evidence was sufficient to convince reasonable jurors that the State had proved its case beyond a reasonable doubt. The evidence was therefore legally sufficient.
Dorman, 622 P.2d at 453; Spencer, 164 P.3d at 653.
McGraw's claim that the trial judge improperly restricted his cross-examination of Detective Ferguson
At one point while McGraw's attorney was cross-examining Detective Ferguson, the defense attorney tried to ask Ferguson a series of questions aimed at getting Ferguson to concede that he had made false statements when he applied for the search warrant.
The prosecutor objected, and the trial judge correctly noted that if the defense attorney wished to attack Ferguson's credibility as a witness by asserting that Ferguson was dishonest, the proper way to do that was through reputation or opinion evidence, not evidence of specific acts of dishonesty. See Alaska Evidence Rules 405 and 608.
In response to the trial judge's explanation, McGraw's attorney argued that Evidence Rule 608 did not apply because the prior false statements that the attorney intended to elicit were made "under oath". The defense attorney then added, "I think [my proposed questioning] goes clearly to the witness's credibility, and I think it is proper."
After hearing the defense attorney's response, the trial judge correctly sustained the prosecutor's objection to the defense attorney's proposed questions. As the judge noted, Evidence Rule 608 prohibits a litigant from trying to establish a witness's dishonesty by introducing evidence of specific instances of dishonesty.
A related Evidence Rule 608 issue surfaced in a second portion of the defense attorney's cross-examination of Ferguson. With regard to this second portion of the cross-examination, McGraw claims that the trial judge unfairly curtailed his attorney's questioning of Ferguson for bias.
McGraw's attorney began by asking Ferguson about the civil suit that McGraw had filed against him, and the fact that McGraw had apparently accused Ferguson of importing drugs to Sitka and selling them. After McGraw's attorney established these matters — matters that clearly were relevant to Ferguson's potential bias — the defense attorney conceded that he had made his point, and he told the trial judge that he was prepared to "move to a different subject".
McGraw's attorney then began to question Ferguson about his "use and reliance on informants". The defense attorney told the judge that he wished to cross-examine Ferguson as to whether Ferguson unjustifiably believed the information that he obtained from Informant #2, and whether Ferguson acted unreasonably or unjustifiably when he presented this information to the magistrate in the search warrant application.
The trial judge asked the defense attorney how this was relevant — since the validity of the warrant was not a question for the jury, and since Informant #2 was not called as a witness at McGraw's trial. The defense attorney responded that his proposed questions were pertinent "to the credibility of the detective and ... what ... he consider[s] to be reliable information, and his testimony about these matters." The trial judge then sustained the prosecutor's objection that the defense attorney's inquiry was not relevant.
McGraw's attorney immediately asked the judge for an opportunity to make a further offer of proof, asserting that "this [was] an important line of questioning that ... impact[ed] significantly the officer's credibility." The judge excused the jury and allowed the defense attorney to make an extended offer of proof — totaling approximately three pages of transcript. In this offer of proof, McGraw's attorney told the judge that the proposed questions would demonstrate that Detective Ferguson was aware of facts that should have caused him to distrust the information supplied by Informant #2. The defense attorney stated that he wanted to ask Ferguson whether, in view of these facts, "[Ferguson] believed that he could rely on the information provided to him by [Informant #2] about Mr. McGraw growing marijuana at [his] property."
When the trial judge again asked the defense attorney to explain what relevance this bore to any issue being litigated at trial (as opposed to the issues already litigated at the suppression hearing), the defense attorney told the judge that this inquiry was relevant to Ferguson's "evaluation of [the] reliability" of Informant #2's information — that it tended to show that the detective had made a "material misrepresentation" when he told the magistrate that Informant #2 was reliable. The defense attorney argued that if Ferguson "testified materially falsely under oath [when he applied for the warrant], then ... that goes to the witness's credibility and bias that is an issue before the jury in this case".
The trial judge noted that McGraw's attorney appeared to be trying to circumvent Evidence Rule 608 in the same way he had earlier, and the judge sustained the prosecutor's objection. The defense attorney then told the judge:
Defense Attorney: Your Honor, [my questions are] really focusing on the conduct of this witness, his testimony
under oath [when he applied for the search warrant], which [was] very close in time to when this all occurred. And I think it goes to ... this witness's bias, motives, and credibility.
The Court: And I've made my ruling.
On appeal, McGraw challenges the trial judge's two rulings regarding the proposed cross-examination of Detective Ferguson. And in his arguments, McGraw focuses for the first time on the issue of Ferguson's bias, as opposed to his "credibility" or dishonesty.
We are unsure whether this claim was preserved in the trial court. It is true that, in the midst of the trial court discussions, McGraw's defense attorney made passing reference to the issue of bias. But the colloquy between the trial judge and the attorneys was almost exclusively centered on the issue of whether the defense attorney's proposed cross-examination was prohibited by Alaska Evidence Rule 608 — i.e., whether the defense attorney was trying to attack Ferguson's credibility by introducing evidence of alleged past instances of dishonesty.
It is also unclear whether the trial judge ever understood the defense attorney to be articulating a potential alternative justification for his proposed questions. The trial judge never issued a ruling on the issue of bias. Instead, the sole basis of the trial judge's rulings was Evidence Rule 608 — an evidence rule that would not govern the defense attorney's proposed inquiry if his questions were indeed intended to establish Ferguson's bias.
As a general matter, a litigant is not allowed to challenge a trial judge's evidentiary ruling by advancing a new and different argument on appeal as to why the proposed evidence or inquiry was proper. It seems that McGraw is attempting to do just that.
Jones v. State, 576 P.2d 997, 1000-01 (Alaska 1978); Dyer v. State, 666 P.2d 438, 450-51 (Alaska App. 1983).
But in any event, even if McGraw's attorney did adequately raise the issue of bias, we uphold the trial judge's rulings on the ground that the defense attorney's proposed questions about the search warrant application had no relevance to the issues the jury would be asked to decide.
As we explained above, McGraw's attorney was allowed to ask all the questions he wished on the subject of whether Detective Ferguson might have been prompted to pursue this investigation because of personal animus toward McGraw. The questions that the trial judge disallowed were all directed toward the issues of whether Detective Ferguson acted unreasonably when he credited the information supplied by Informant #2, and whether Ferguson might have misrepresented the state of the investigation when he applied to the magistrate for the search warrant.
These latter issues may have been relevant to the validity of the search warrant, but they were not relevant to the issues before the jury. Rather, the question before the jury was whether the State had proved beyond a reasonable doubt that McGraw was complicit in the marijuana cultivation and sale that was occurring at the Beardsley Way property.
The defense attorney's proposed questions were aimed at showing that Ferguson might have committed lapses or improprieties when he applied for the search warrant. But McGraw has never suggested how these purported lapses or improprieties could have affected the verity of the physical evidence that was observed and seized during the execution of the search warrant.
Nor has McGraw suggested how these purported lapses or improprieties were relevant to the question of McGraw's complicity in the marijuana operation that was discovered on the property. The evidence tying McGraw to that marijuana operation did not hinge on Ferguson's credibility.
We accordingly reject McGraw's contentions that the trial judge improperly restricted his cross-examination of Detective Ferguson.
The failure of the trial judge to specially instruct the jurors on the requirement of factual unanimity
McGraw contends that the trial judge committed plain error by failing to give the jury special instruction on the requirement of factual unanimity.
In particular, McGraw argues that it would be improper for the jury to convict him on Count I (manufacturing or delivering one ounce or more of marijuana, or possessing one ounce or more of marijuana with intent to distribute it) if some of the jurors believed that McGraw grew the marijuana, while other jurors believed that he sold it, or others believed that he possessed it with intent to sell. Likewise, McGraw argues that it would improper for the jurors to convict him of Count III (maintaining a building for use in a drug felony) unless the jurors unanimously agreed on which of the four buildings McGraw maintained.
Under Alaska law, jurors must unanimously agree on the particular episode or incident of criminal conduct that forms the basis for the guilty verdict. But this does not mean that jurors must reach unanimous agreement on all factual aspects of the defendant's conduct.
See Khan v. State, 278 P.3d 893, 898-99 (Alaska2012); Covington v. State, 703 P.2d 436, 440-41 (Alaska App. 1985).
As this Court explained in Lawson v. State, 264 P.3d 590, 594 (Alaska App. 2011), the courts of this state have repeatedly upheld general verdicts in cases where the jury instructions "allowed [the jurors] to convict the defendant based on alternative interpretations of the facts of a [particular] criminal episode, as long as the jurors were unanimous that the defendant's conduct and culpable mental state(s) satisfied all of the elements of the crime charged." The footnote accompanying this text (footnote 12) lists a number of cases where defendants unsuccessfully claimed that complete factual unanimity was required.
See Ward v. State, 758 P.2d 87, 91-92 (Alaska 1988) (holding that jurors need not be unanimous as to whether the defendant drove a motor vehicle while impaired or with a blood alcohol level above the legal limit); Ragsdale v. State, 23 P.3d 653, 658-59 (Alaska App. 2001) (holding that, in a prosecution for second-degree sexual assault, jurors need not be unanimous as to whether the defendant engaged in sexual penetration with a person he knew was incapacitated or with a person he knew was unaware a sexual act was occurring); Baker v. State, 22 P.3d 493, 500-01 (Alaska App. 2001) (holding that, in a prosecution for interference with official proceedings, the jury need not be unanimous as to whether the defendant offered the witness a bribe or threatened her during a series of phone conversations); Baker v. State, 905 P.2d 479, 489 (Alaska App. 1995) (holding that, in a prosecution for robbery, the jurors need not be unanimous as to whether the defendant, as opposed to one of his co-robbers, was the one who struck the victim); Norris v. State, 857 P.2d 349, 353-54 (Alaska App. 1993) (holding that, in a prosecution for second-degree murder, the jurors need not be unanimous as to whether the defendant purposely fired his rifle at the victim or whether, instead, the victim grabbed the pointed rifle and it discharged by accident); Totemoff v. State, 866 P.2d 125, 129 (Alaska App. 1993), reversed on other grounds, 905 P.2d 954 (Alaska 1995) (holding that jury unanimity was not required as to whether the defendant acted as a principal or an accomplice in the illegal taking of deer).
Based on this authority, we reject McGraw's argument that the jurors had to reach complete factual unanimity before they convicted McGraw on Count I. This count charged McGraw with violating AS 11.71.040(a)(2) in one of three ways: manufacturing at least one ounce of marijuana, delivering at least one ounce of marijuana, or possessing at least one ounce of marijuana with intent to deliver. But in McGraw's case, the State's theory of prosecution did not involve separate criminal episodes of manufacturing, delivery, or possession. Rather, Count I charged a single criminal episode based on the marijuana found in the trailer and the associated out-building (Buildings 1 and 2), and the State's evidence supported separate theories of how McGraw's conduct during that episode violated the statute. The jury did not have to reach unanimous agreement on these theories.
There is, however, more force to McGraw's factual unanimity argument regarding Count III. In Count III, McGraw was charged under AS 11.71.040(a)(5) with knowingly keeping or maintaining "[a] building ... or other structure ... used for keeping or distributing controlled substances in violation of a felony [drug] offense".
There were four structures within the compound on Beardsley Way. McGraw argued that he had no control over the two Conex storage containers (Buildings 3 and 4). McGraw conceded that he lived in the trailer and the associated out-building (Buildings 1 and 2), but he argued that his friend Vincent Peters also had the run of those buildings, and that Peters could have been dealing marijuana there, or keeping marijuana there for sale, without McGraw's knowledge.
At the end of the trial, the prosecutor argued to the jury that McGraw could be convicted of Count III under alternative theories: either that McGraw maintained Buildings 1 and 2, or that he maintained Buildings 3 and 4. McGraw's attorney did not object to this argument, nor did he respond to this argument by asking the trial judge to give the jury further instruction on the requirement of factual unanimity. But on appeal, McGraw contends that, in light of the prosecutor's argument, the trial judge committed plain error by failing to tell the jurors that they could not convict McGraw of Count III unless they reached unanimous agreement as to which pair of buildings McGraw maintained.
We conclude that we need not resolve this question — because, as we explain later in this opinion, we are directing the superior court to merge McGraw's convictions on Counts I and III. Since McGraw will receive only one combined conviction on these two counts, McGraw has not been prejudiced by the potential "factual unanimity" error with respect to the jury's consideration of Count III.
McGraw's other attacks on the jury instructions
McGraw contends that the trial judge committed error by declining to give McGraw's proposed instruction that an indictment is a "mere accusation" and that it does not constitute evidence against the defendant.
Although this instruction is generally given in criminal trials in Alaska, the trial judge in McGraw's case decided that this instruction was redundant with another jury instruction that the judge had already given. Jury Instruction 7 told McGraw's jurors that "[t]he law presumes a defendant to be innocent of crime", and that "the defendant, although accused, begins the trial with a clean slate — with no evidence against him."
We agree with the trial judge that Jury Instruction 7 adequately conveyed the concept that an indictment does not constitute evidence against the defendant — that if the jury is to find the defendant guilty, the jury's decision must be based solely on the evidence presented at trial.
In another argument, McGraw contends that the trial judge should have given the jurors a limiting instruction that he proposed regarding Stephen Bacon's testimony that McGraw had sold marijuana to him in the past.
McGraw characterizes his proposed instruction as "based on" Alaska Pattern Criminal Instruction 1.29, and he argues that his instruction would properly have instructed the jurors that Bacon's testimony about these crimes should not be used "for propensity purposes".
But in fact, the instruction proposed by McGraw deviated substantially from Pattern Criminal Instruction 1.29, and it went far beyond telling the jurors that Bacon's testimony could not be used to establish McGraw's general criminal propensity.
Alaska Criminal Pattern Jury Instruction 1.29 (2013) reads:
You [have heard] [are about to hear] evidence that the defendant may have engaged in conduct other than the conduct for which [he][she] is on trial.
If you find that the defendant engaged in this other conduct, then you may only consider this evidence for the purpose of deciding whether you believe it shows [insert Evidence Rule 404(b)(1) purpose, including but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.]
You may consider this evidence for that purpose only. In doing so, you should weigh it in the same way as you do all of the other evidence in this case, and only give it the weight that you believe it deserves for that limited purpose. If you find this evidence has no weight, then you should disregard it entirely.
Do not use this evidence for any other purpose, or even talk about it for other purposes in your deliberations. It would be improper and unfair for you to do so.
McGraw's proposed instruction would have incorrectly told the jurors that the evidence of McGraw's prior sales of marijuana "[could] not be considered by [them] to prove that [McGraw] commit[ted] any of the crimes for which he is on trial".
The proposed instruction then stated—somewhat contradictorily, but again inaccurately — that the evidence of McGraw's sales of marijuana could only be used "for the limited purpose of deciding ... whether [McGraw] had the requisite intent". In fact, the jury could properly use the evidence not only when deciding whether McGraw had the requisite intent for Counts I and III, but also whether he had the requisite knowledge for Counts II and IV.
Thus, McGraw's proposed instruction was legally incorrect or, at best, substantially misleading. The trial judge did not abuse his discretion when he declined to give it.
One might argue that even though McGraw proposed a flawed instruction, McGraw's request should have put the trial judge on notice that he should give some type of limiting instruction — perhaps an instruction that more closely tracked the language of Pattern Criminal Instruction 1.29. But given the facts of McGraw's case, it was obvious why Bacon's testimony about McGraw's marijuana sales was relevant to the charges against McGraw. There is little or no chance that the jurors misused this evidence. We therefore conclude that even if it was error for the judge to omit a limiting instruction, the error was harmless.
McGraw's final attack on the jury instructions concerns the trial judge's refusal to instruct the jury that McGraw's possession of marijuana might be justified by medical necessity.
In the superior court, McGraw proposed a jury instruction on this issue that tracked the language of AS 11.81.320 — the provision of our criminal code that defines the general defense of necessity. McGraw's trial judge refused to give his proposed instruction because (1) the Alaska Legislature has enacted a separate statute, AS 11.71.090, that creates a specific medical necessity defense for marijuana possession, and (2) McGraw failed to offer evidence that would support a reasonable conclusion that McGraw's possession of marijuana was justified under this statute.
McGraw's attorney conceded to the trial judge that McGraw failed to meet the requirements of the statutory medical necessity defense codified in AS 11.71.090. But McGraw's attorney argued that he should nevertheless be entitled to raise "an imperfect marijuana defense" based on the general necessity defense codified in AS 11.81.320.
McGraw's attorney acknowledged that this Court had already rejected this very argument in Noy v. State, 83 P.3d 538 (Alaska App. 2003). In Noy, we held that the general necessity defense codified in AS 11.81.320 does not apply to marijuana possession cases, because the Legislature has enacted a separate, more specific medical necessity defense for marijuana. Id. at 544. Nevertheless, McGraw's attorney asked the trial judge to ignore Noy and to give his proposed instruction. The judge refused.
On appeal, McGraw contends that the trial judge committed error by failing to give his proposed necessity instruction based on AS 11.81.320. He argues that "to the extent Alaska decisions have held to the contrary [here the attorney includes a footnote citation to Noy], they should be reversed."
This type of briefing is not adequate to comply with the requirements of the stare decisis doctrine. A litigant who wishes to argue that controlling precedent should be overturned must explain either why the earlier decision was originally erroneous — in other words, was never legally justifiable — or why the earlier decision is no longer sound because of changed conditions.
State v. Dunlop, 721 P.2d 604, 610 (Alaska 1986); Joseph v. State, 315 P.3d 678, 684 n. 4 (Alaska App. 2013); Erickson v. State, 950 P.2d 580, 587 (Alaska App. 1997).
McGraw makes no attempt to do this. His briefing of this point is therefore not adequate to preserve this argument for appeal.
McGraw's arguments based on the prosecutor's conduct at trial
In another section of his brief, McGraw asserts that his trial was rendered unfair by the prosecutor's "improper tactics".
In this section, McGraw lists various things that the prosecutor said during the trial: questions that she asked witnesses, objections that she raised to the defense attorney's questions, remarks that she made to the trial judge during the argument of legal issues, and comments that she made to the jury during her summation.
With respect to all of these, McGraw conclusorily asserts that the prosecutor's remarks were improper, and that these remarks deprived him of a fair trial. McGraw concedes that his attorney did not object to any of these remarks, but he argues that they constitute plain error.
McGraw's brief contains almost no explanation of why he believes that these remarks were improper. He simply quotes them, apparently believing that the impropriety of the remarks is obvious from the remarks themselves. We do not agree.
Because the prosecutor's remarks are presented devoid of context, it is difficult, bordering on impossible, to ascertain exactly what McGraw is complaining of. All of these remarks were potentially proper — and it is not this Court's job to go searching through the record to see if McGraw's attorney had any plausible basis for objecting to these remarks.
See Pierce v. State, 261 P.3d 428, 433 (Alaska App. 2011) ("It was not [the trial judge's] job to figure out how the testimony presented at the evidentiary hearing, in combination with the applicable law, might conceivably justify suppression of the witness's identification. Nor was it [the judge's] duty to make, unprompted, all the findings of fact and rulings of law needed to resolve any and all possible arguments in support of suppression. Rather, it was the defense attorney's job to frame an argument that contained a proposed factual and legal analysis of [the] case, and to seek the judge's ruling on that argument.").
Moreover, even if some of the remarks were potentially improper, McGraw has made no attempt to explain how he was prejudiced by them.
In sum, we find no plain error.
The jury's struck-through verdicts on the two lesser included offenses related to Count I
McGraw was charged in Count I with possessing one ounce or more of marijuana with intent to distribute. The jury received three verdict forms relating to this count.
One of these verdict forms called for the jury to indicate whether they found McGraw guilty or not guilty of the crime charged. This verdict form also stated that if the jury found McGraw guilty of this offense, they should not complete the other two verdict forms.
A second verdict form called for the jury to indicate whether they found McGraw guilty or not guilty of the lesser offense of possessing one ounce or more of marijuana for personal use. And a third verdict form called for the jury to indicate whether they found McGraw guilty or not guilty of the even lesser offense of simply possessing some amount of marijuana.
When the jury returned to court with its verdicts, all three of these forms bore markings. On the first verdict form, an "X" was written next to the printed language, "Guilty of Misconduct Involving Controlled Substances as charged in Count I", and the foreman had dated and signed the verdict form.
An "X" was also written next to the "guilty" language on the second and third verdict forms, and the foreman had likewise dated and signed these forms. The difference, however, was that the "X", the date, and the foreman's signature were all struck through on the second and third verdict forms. In addition, the foreman had written his initials next to where his signature was struck through, and he had written "moot" at the bottom-right corner of these two verdict forms.
When the trial judge announced the jury's verdicts in open court, the judge declared that the jury had found McGraw guilty on Count I, and that "Verdict Forms 2 and 3 are not completed, so — they're scratched out, is a better way to put it."
McGraw's attorney asked for the jurors to be polled (and they were). But McGraw's attorney did not ask to see the "scratched-out" verdict forms that the judge had referred to, nor did he make any other request regarding these verdict forms.
Now, on appeal, McGraw argues that his conviction on Count I is constitutionally invalid because of the scratched-out verdict forms.
More specifically, McGraw points out that the jurors were told (both during jury instructions and on Verdict Form 1 itself) that they should not return a verdict on either of the two lesser included offenses unless they reached a verdict of "not guilty" on the charged offense. Because the jury filled out the two verdict forms for the lesser offenses, McGraw infers that the jurors "must have at one time made a finding [that McGraw was] not guilty on Count I." McGraw therefore contends that he is entitled to an acquittal on Count I.
McGraw cites no legal authority in support of this assertion, and we are aware of none. Moreover, McGraw's argument hinges on the unstated assertion that, because the jurors marked "guilty" on a verdict form pertaining to a lesser included offense, the jurors must necessarily have decided to acquit McGraw of the greater offense. This does not follow.
When a charged offense includes lesser offenses, the jurors are allowed to deliberate on the greater and lesser offenses in any order they wish. Thus, jurors might reach unanimous agreement that the defendant is guilty of a lesser offense before they tackle the issue of whether the defendant is guilty of the greater (charged) offense. Technically, jurors in this situation should refrain from filling out any verdict form until they have reached unanimous agreement on both the greater and the lesser offenses. But if jurors in this situation did fill out the verdict form pertaining to the lesser offense before they reached a unanimous decision regarding the greater offense, this would be a clerical error — not a declaration that they had found the defendant not guilty of the greater offense.
Past Alaska cases on related issues are unanimous in holding that the jury's intention controls, even when the jurors may have made clerical errors when they filled out the verdict forms. In fact, a court is authorized to affirmatively amend the verdict forms when it is clear that the filled-out forms do not accurately reflect the jury's decision.
Crouse v. Anchorage, 79 P.3d 660, 663-64 (Alaska App. 2003); Wardlow v. State, 2 P.3d 1238, 1252 (Alaska App. 2000); Davidson v. State, 975 P.2d 67, 73-74 (Alaska App. 1999). --------
In McGraw's case, it is clear what verdict is reflected in the verdict forms themselves. The jurors marked an "X" next to the "Guilty" language on Verdict Form 1 (the form for their verdict on the possession for distribution charge), and the foreman dated and signed this verdict. In contrast, the markings, dates, and signatures on the other two verdict forms were struck through, and the foreman put his initials next to where his signature was struck through — a convention that is commonly employed when the maker of a document wishes to confirm that he or she has ratified a handwritten alteration of the document. In addition, the jury foreman wrote the word "moot" at the bottom of the two struck-through verdict forms.
Thus, the physical documents themselves are not ambiguous; they bespeak the jury's intention to find McGraw guilty on Count I as charged. This intention was confirmed when the jurors were polled in open court, at McGraw's attorney's request.
Finally, we note that McGraw has chosen to raise this issue for the first time on appeal. He did not seek relief from the trial court after he discovered the struck- through language on the verdict forms. Thus, to the extent that there are factual aspects of this situation that might need clarification, this is only because McGraw chose not to litigate this issue in a forum that was authorized to make findings of fact.
For these reasons, we reject McGraw's arguments that the jury actually acquitted him on Count I or (alternatively) that the situation is so confused that the jury's guilty verdict must be rejected.
McGraw's claim of cumulative error
McGraw includes a claim of cumulative error toward the end of his brief, arguing that even if no single error (of the ones we have discussed so far) caused sufficient prejudice to justify reversal of his convictions, the totality of these errors caused a cumulative prejudice that requires reversal.
But as we have explained, we have not found merit in any of the appellate claims that we have discussed so far. We therefore reject McGraw's claim of cumulative error.
McGraw's convictions on Count I and Count III must merge
In Rofkar v. State, 305 P.3d 356 (Alaska App. 2013), this Court held that a defendant can not be separately convicted and sentenced for (1) committing a felony drug offense and (2) maintaining a building where the drugs are grown, processed, or stored. We concluded, based on the legislative history of AS 11.71.040(a)(5), that this "maintaining a building" statute was "aimed primarily at persons who facilitate someone else's drug offenses ... but who would not necessarily be prosecutable as accomplices to the underlying drug offense". Id. at 358.
Our decision in Rofkar seemingly requires a merger of McGraw's two convictions in this case. In one count, McGraw was convicted of growing, distributing, or possessing an ounce or more of marijuana for purposes of distribution. In the other count, McGraw was convicted of maintaining a building where this activity took place. With respect to this second count, the State's main theory was that McGraw was guilty of maintaining a building because he stored and processed the marijuana in his residence (i.e., the trailer that we have called Building 1 and the associated out-building that we have called Building 2). This was the same situation presented in Rofkar.
The State argues that McGraw's separate conviction for maintaining a building can be justified by findings of fact that the superior court made at McGraw's sentencing hearing — findings that McGraw, besides living in Buildings 1 and 2, also controlled the two Conex storage containers (Buildings 3 and 4), and that McGraw allowed other people (his brother Joshua and his friend Vincent Peters) to grow marijuana there. In other words, the State argues that, at least with respect to the marijuana activities occurring in the Conex storage containers, McGraw was a person who maintained a building to facilitate someone else's drug offenses.
The problem with the State's argument is that, even though the sentencing judge may have made these findings, the jury did not — nor was the jury asked to.
In cases where the facts are ambiguous as to whether a defendant has committed separate offenses or (conversely) only one unified or continuing offense, the law resolves this ambiguity against the government unless the jury has made findings that support the entry of separate convictions. We most recently explained and applied this principle in Wiglesworth v. State, 249 P.3d 321, 330-31 (Alaska App. 2011), and before that in Soundara v. State, 107 P.3d 290, 299 (Alaska App. 2005), and Simmons v. State, 899 P.2d 931, 937 (Alaska App. 1995).
Accordingly, even though the State may have plausible arguments as to how the facts of McGraw's case might justify McGraw's receiving a separate conviction for maintaining a building for use in a felony drug offense, the State's arguments are moot.
Conclusion
The superior court's judgement must be amended to reflect one consolidated conviction based on the jury's two guilty verdicts on Counts I and III. Apart from that, the judgement of the superior court is AFFIRMED.