Opinion
Court of Appeals No. A-11956 No. 6735
11-21-2018
ANTONIO SCHERELL HAMILTON, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, 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. 3AN-13-3062 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Anchorage, Kevin M. Saxby, Judge. Appearances: Kelly R. Taylor, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock, Superior Court Judge. Judge SUDDOCK.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
Probation officers conducted a search of the bedroom that probationer Antonio Scherell Hamilton shared with his girlfriend. That probation search, and an ensuing follow-up search by police officers, revealed a small rock of cocaine in a glass container, as well as "spice," a synthetic cannabinoid that was legal at the time.
Hamilton was charged with possession of cocaine. Because he was also on bail release in an unrelated criminal case, Hamilton was charged with violating the bail condition that he obey all laws.
Before trial, Hamilton's attorney asked the superior court to preclude the State from introducing evidence of Hamilton's possession of spice. The trial judge denied this motion, finding that the presence of the spice in Hamilton's bedroom was relevant to explain the officers' actions after their arrival at the house. The judge further reasoned that, because possession of spice was not illegal at the time, this evidence was not unduly prejudicial to Hamilton.
Hamilton was found guilty at trial, and he now appeals. For the reasons that we explain in this opinion, we conclude that the evidence of Hamilton's possession of spice bore little relevance to the cocaine possession charge, that this evidence was more prejudicial than probative, and that it should have been excluded under Alaska Evidence Rule 403. Accordingly, we reverse Hamilton's conviction for possession of cocaine.
Background facts and proceedings
Hamilton, who was on probation, lived with his girlfriend Ashlee Estell at the home of Estell's father. Probation Officers Joshua Hooyer and Justin Brozovsky went to the house to conduct a random search, as permitted by Hamilton's conditions of probation. Estell's father allowed the probation officers to enter, and he directed them downstairs to Hamilton's bedroom. As the officers approached Hamilton's bedroom, they smelled a strong odor of spice.
Hamilton was present in the bedroom. Officer Brozovsky searched the bedroom and quickly found a bindle containing a three-quarter-inch-long rock of cocaine in a small speckled glass candle holder sitting atop a television stand. The bindle was readily visible within the glass container. A subsequent search of the room by police officers revealed a container of spice under clothing in a laundry hamper, and a glass pipe in a nearby shoe.
Based on Hamilton's possession of cocaine, he was charged with fourth-degree misconduct involving a controlled substance, and with violation of his conditions of release in a prior case. Prior to Hamilton's trial, his attorney moved for a protective order to prevent the State from introducing evidence of the spice found in Hamilton's room. The defense attorney argued that the State was offering this evidence for propensity purposes — i.e., to show that, because Hamilton possessed the spice found in the bedroom, he also likely possessed the cocaine found in the same room. The defense attorney argued that, offered for this purpose, the evidence of the spice was barred by Alaska Evidence Rule 404(b)(1). The attorney further argued that even if the spice had any non-propensity relevance, that relevance was scant and it was outweighed by the prejudicial effect of the evidence. Thus, the attorney argued, the evidence should be excluded under Evidence Rule 403.
Former AS 11.71.040(a)(3)(A) (pre-2016 version) and former AS 11.56.757(b)(1) (pre-2016 version), respectively.
The prosecutor responded that he was offering the spice evidence for permissible purposes under Evidence Rule 404(b)(1) — first, to prove that Hamilton occupied the bedroom in question, and second, to prove that, when Hamilton heard the arrival of the probation officers, he quickly hid not only the spice but also the cocaine. The prosecutor reasoned that the open-topped glass candle holder amounted to a hiding place for the cocaine, and that Hamilton had likely hidden both the spice and the cocaine immediately before the probation officers entered his room. The prosecutor argued that this hypothetical act of contemporaneous concealment of both substances established Hamilton's knowledge of and control over the cocaine.
The judge denied the defense motion, but not on the basis argued by the prosecutor. The judge instead concluded that the spice was relevant to explain why the probation officers acted as they had. First, the judge speculated (before hearing any testimony on this issue) that the smell of the spice might have led the probation officers to Hamilton's room. Second, the judge speculated (again, before hearing any testimony) that the smell of the spice might have focused the probation officers' attention on Hamilton — leading the officers to question Hamilton more intensively, and to search his room more thoroughly, than they otherwise would have done. The judge stated, "[M]y understanding is that [the spice] was a part of the chain that led to a more intensive search, and is part of the rationale for the more intensive search, and so I do find that it's probative." A little later, the judge reiterated his conclusion that the spice "appear[ed] to have been an integral part of the investigation." Lastly, the judge concluded that since possession of spice was not illegal, this evidence was "no more prejudicial than evidence of alcohol use."
Even though the judge apparently anticipated that the spice would play a minor role in the trial, merely explaining peripheral investigative details, this was not how the prosecutor employed the evidence at trial. During his opening statement, the prosecutor told the jury that Hamilton hid the spice and the cocaine in tandem, and that this purported successive concealment of the spice and the cocaine established Hamilton's knowing possession of the latter: "he's hiding that spice, he's hiding that cocaine."
The prosecutor then presented the spice evidence as if Hamilton were on trial not only for possession of cocaine, but for possession of spice as well. The prosecutor emphasized the importance of the spice evidence throughout the trial. Three different officers testified about it. Of the sixteen photographs that the State offered into evidence, six were related to the spice, and only one to the cocaine. During his final argument, the prosecutor again told the jury that his case hinged on the relationship between the spice and the cocaine, arguing that "We have him hiding spice and we have him hiding cocaine."
The jury found Hamilton guilty of possessing cocaine and violating the conditions of his release. This appeal followed.
Why we conclude that the judge erred by admitting evidence of the spice
The contested issue during the trial was whether Hamilton was aware of the cocaine in his bedroom. Hamilton's attorney suggested that the cocaine belonged to Hamilton's girlfriend's mother, a purported cocaine user who had occupied the bedroom in the fairly recent past.
Under Evidence Rule 404(b)(1), evidence is not admissible at trial if its sole purpose is to prove a defendant's propensity to commit crime. We have cautioned that, when a judge evaluates the admissibility of evidence of prior bad acts under this rule, the judge must focus on the relevance of the challenged evidence to material issues in the case that are actually contested. And if otherwise prejudicial evidence is offered by the State to explain some aspect of the State's case, the judge must analyze whether admission of the evidence for explanatory purposes is truly necessary, and whether the probative value of the evidence (offered for this purpose) is outweighed by its potential for unfair prejudice.
See Belcher v. State, 372 P.3d 279, 285 (Alaska App. 2016); Moor v. State, 709 P.2d 498, 506 (Alaska App. 1985) (holding that "the issue upon which the evidence is offered must be truly disputed in the case").
See McIntire v. State, unpublished, 1999 WL 34000733, at *4-5 (Alaska App. Oct. 13, 1999) (affirmingthe trial court's admission of probation reports to explain why the police and probation officers searched McIntire's residence (where they found drugs), and to establish that McIntire lived at the residence where the drugs were found).
Here, the judge admitted the spice-related evidence because the smell of spice might have led the officers to the bedroom, and to explain the intensity of the officer's subsequent investigation. Both of these rationales were predicated upon speculation. No evidence suggested that the smell of spice led the officers to the bedroom; indeed, as Officer Hooyer would testify, Estell's father directed the probation officers downstairs to Hamilton's room. And no evidence suggested that the probation officers questioned Hamilton and searched his room more intensively due to the odor of the recently smoked spice; the officers had gone to the house for the specific purpose of searching Hamilton's room.
Moreover, even if both propositions relied upon by the judge were true, they were irrelevant. Neither the location of Hamilton's bedroom nor the intensity of the probation officers' investigation were disputed issues in the case — and they were certainly not issues that required explanation.
When the judge addressed the prejudicial force of the spice-related evidence pursuant to Evidence Rule 403, he concluded that, because spice possession was not illegal at the time, Hamilton's use of spice was no more prejudicial than if Hamilton had been found drinking. We find this analysis unconvincing. As Hamilton's defense lawyer pointed out, news sources in Anchorage had recently portrayed spice in an unsavory light. Evidence suggesting that Hamilton hid the spice also suggested than he knew he was acting contrary to the spirit, if not the letter, of his probation conditions. And the evidence bore a marked potential for misuse by the jury to infer Hamilton's propensity to possess drugs.
In sum, because the spice was only pertinent to irrelevant or non-contested issues (the location of Hamilton's bedroom, and the intensity of the search), and because the judge's analysis of the prejudicial effect of the evidence unrealistically downplayed manifest risks that the jury would misuse that evidence, we conclude that the judge's decision to admit the spice evidence was an abuse of discretion.
And as it turned out, the prosecutor did not employ the spice-related evidence for the purposes for which the judge had ruled it to be admissible. Instead, the prosecutor used that evidence to support a far-fetched theory (unsupported by any other evidence in the case) that when Hamilton was smoking spice, the cocaine was not in the glass container, and that Hamilton hurriedly placed the cocaine in the container at the same time that he hid the spice.
As noted, the prosecutor had earlier argued that theory to the judge, but the judge instead admitted the evidence under a different rationale. We caution judges that, when evidence of prior bad acts is admitted for a specific purpose under Evidence Rule 404(b)(1), it is the judge's responsibility to make sure that the attorneys' and the jury's use of that evidence is confined to that specific purpose.
Here, the State's burden at trial was to prove, beyond a reasonable doubt, that the small rock of cocaine found in a shared bedroom was in fact possessed by Hamilton. And during Hamilton's trial, the prosecutor strived to prove this element by linking the spice to the cocaine. We cannot with confidence say that the prosecutor's repeated references to the spice, and its alleged connection with the cocaine, did not appreciably affect the jury's verdict. Accordingly, we reverse Hamilton's convictions for possession of cocaine and for violating the conditions of his release.
See Love v. State, 457 P.2d 622, 633 (Alaska 1969). --------
Conclusion
We REVERSE the judgment of the superior court.