Opinion
Court of Appeals No. A-8777.
June 28, 2006.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood and Randy M. Olsen, Judges, Trial Court No. 4FA-02-4011 CR.
Paul Ewers, Law Office of Paul Ewers, Fairbanks, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. Márquez, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
James W. Hughes was convicted of four counts of second-degree, four counts of third-degree, and two counts of fourth-degree misconduct involving controlled substances. The superior court imposed a composite term of 15 years' imprisonment with 3 years suspended. Hughes challenges the superior court's denial of his motions to suppress evidence. He faults the superior court for failing to declare a mistrial. In addition, Hughes challenges the superior court's disqualification of his appointed counsel because of a conflict and claims that the superior court judge assigned to the case should have recused himself. Finally, Hughes argues his composite sentence is excessive. For the following reasons, we uphold the decisions of the superior court.
Facts and procedural background
In September 2001, Kathleen Taylor contacted Investigator Teague Widmier, an Alaska State Trooper assigned to the Statewide Drug Enforcement Unit (SDEU), and offered to become an undercover informant.
Taylor had learned through a friend, Lara C. Johnson, that Hughes manufactured methamphetamine. On January 15, 2002, Taylor arranged through Johnson to buy methamphetamine from Hughes at Hughes's residence. Taylor went to Hughes's cabin with $100 in pre-recorded "buy funds" provided by the SDEU and purchased one gram of methamphetamine from Hughes. Taylor was searched before and after the purchase. Investigator Widmier conducted a field test of the substance Taylor purchased and observed a color change indicative of methamphetamine.
After this transaction, Investigator Widmier applied for Glass warrants to monitor and record telephone conversations between Taylor and Johnson (SW 02-11) and Taylor and Hughes (SW 02-12). On January 17 and 18, Investigator Widmier recorded conversations between Taylor and Hughes. During the conversations, Taylor arranged to buy more methamphetamine from Hughes.
State v. Glass, 583 P.2d 872, 881 (Alaska 1978) (holding that a search warrant is required for electronic monitoring of conversations).
On January 19, Taylor went to Hughes's cabin and purchased methamphetamine from Hughes with $200 of pre-recorded "buy funds" provided by the SDEU. Taylor was searched before and after the transaction and surrendered all of the product to the SDEU officers. The entire transaction was monitored and recorded pursuant to the Glass warrants.
On January 29, Investigator Widmier obtained two more Glass warrants to monitor and record future conversations and transactions between Taylor and Johnson (SW 02-35) and Taylor and Hughes (SW 02-34). Later that day, Taylor went to Hughes's house and purchased methamphetamine with $100, following the same procedures used in earlier transactions. This transaction was also recorded.
On May 20, Taylor visited Hughes's cabin and attempted to buy more methamphetamine. While at Hughes's residence, Taylor smelled strong chemical odors associated with making methamphetamine. Hughes told Taylor that he had not been "cooking" for a few days but said he would have more methamphetamine ready soon.
On May 22, Investigator Widmier obtained a warrant to search Hughes's home. The warrant was based on information Investigator Widmier had received from Taylor, as well as from information obtained pursuant to the Glass warrants.
Investigator Widmier and other SDEU officers executed the search warrant for Hughes's residence on May 23, 2002. The SDEU officers were accompanied by two probation officers, Dawn Fox and Bobby Hines.
Hughes was on probation during all of Investigator Widmier's investigation.
The warrant authorized only a search of Hughes's residence, "a single-story log cabin dwelling." During the raid on the residence, three vehicles parked on the property were also searched. Fox testified that she initiated the search of the vehicles. Trooper Lawrence Erickson testified that Investigator Widmier assigned him the task of searching some of the vehicles. Trooper Erickson was accompanied in this search by another trooper, as well as Fox and Hines. The search of the cars revealed chemicals used to make methamphetamine, a small box lab, and miscellaneous methamphetamine paraphernalia. These items were used to prosecute Hughes.
Hughes was indicted in November 2002 on ten counts of misconduct involving controlled substances. Counts 1-4 charged Hughes with delivering a controlled substance (methamphetamine) to Taylor. Count 5 charged Hughes with manufacturing methamphetamine. Counts 6-9 charged Hughes with possessing chemicals used in the manufacture of methamphetamine. Count 9 charged Hughes with possession of methamphetamine. Count 10 charged Hughes with possession of psilocyn (mushrooms), which were also discovered in the search of Hughes's residence.
AS 11.71.030(a).
AS 11.71.020(a)(2).
AS 11.71.020(a)(4).
AS 11.71.040(a).
Id.
The Public Defender Agency was appointed to represent Hughes, and the assigned attorney filed a motion to suppress the evidence obtained with the Glass and search warrants. The State moved to disqualify the Public Defender Agency because the Public Defender Agency represented Taylor, the undercover informant, in 2000 for a drug-related offense. Hughes opposed the motion, as did the Office of Public Advocacy, which had represented Taylor since November 2001. Superior Court Judge Mark I. Wood granted the State's motion.
Several attorneys were appointed to represent Hughes but, for reasons not germane to this appeal, had to withdraw. Before one of these attorneys withdrew, the attorney asked Judge Wood to recuse himself from Hughes's case because Judge Wood had a "counseling relationship" with Investigator Widmier. Judge Wood replied that Hughes could file a motion for recusal but that Judge Wood would not recuse himself unless he was required to rule on Investigator Widmier's credibility.
In July 2003, Hughes filed another motion to suppress evidence, arguing that Investigator Widmier failed to notify Hughes of the electronic searches and deliver results of those searches to the court, as required in the Glass warrants. Hughes also filed a notice with the superior court enumerating the potential instances in which Judge Wood would be required to evaluate Investigator Widmier's credibility.
Judge Wood assigned Superior Court Judge Randy M. Olsen to rule on the motions and conduct whatever evidentiary hearings were required. Judge Olsen ruled that the search of the vehicles was a valid probation search. Judge Olson denied Hughes's additional motion, which was based on the State's failure to comply with the Glass warrant notification requirements.
Issues regarding the search warrants
Hughes asserts that, because the warrant to search his residence did not include vehicles, the search of the vehicles on his property was unauthorized. In addition, Hughes argues that the search warrants and the Glass warrants were not supported by probable cause. Finally, Hughes asserts that the State failed to follow the requirements of the Glass warrants because it did not notify Hughes or the court of the seizures within the time frame required by the warrants.
The search warrant for Hughes's cabin did not specify that vehicles on the property could be searched. Hughes argues that Judge Olsen erred in denying Hughes's motion to suppress evidence found in the vehicles because the search of the vehicles exceeded the scope of the warrant. The State concedes that omission of the vehicles from the warrant request was an inadvertent mistake on the part of Investigator Widmier. But the State contends the search was a valid probation officer's search because it was performed by probation officers and authorized by the conditions of Hughes's probation.
As we noted above, Hughes was on probation for drug-related charges at the time of the search. Warrantless searches were a condition of Hughes's probation. The evidence presented to Judge Olsen showed that the search of the vehicles was conducted by probation officers Fox and Hines, as well as the SDEU officers.
Hughes asserts that the "appropriate inquiry is whether the probation officer was used to help police evade the Fourth Amendment's usual warrant and probable cause requirements or whether the probation officer enlisted the police to assist in her own legitimate objectives." Hughes claims that Investigator Widmier was in "full charge" of the search operation and that Investigator Widmier's goals, and not the probation officer's objectives, motivated the search. Hughes notes that in February 2002, approximately four months before the search of Hughes's home, the SDEU asked Fox, who was then supervising Hughes's probation, to cease Hughes's house checks and urinalysis while the troopers pursued their undercover investigation.
But Fox testified that, when Investigator Widmier notified her that they were going to raid Hughes's home, Fox volunteered to go along on the raid because she had independent information suggesting Hughes was manufacturing methamphetamine. Fox said she wanted to search Hughes's residence because the search "was directly related to his original charge of the misconduct involving a controlled substance and I wanted to make sure that he was not in possession of any drugs, or paraphernalia, and that he wasn't manufacturing anything." Fox testified that she initiated the search of the vehicles.
At the evidentiary hearing, Judge Olsen found that Investigator Widmier's inclusion of the probation officers in the search was not a pretext for avoiding the warrant requirement: "It's clear [the troopers] had an investigation, [the troopers] had their search warrant and that[,] even though they had been asking for the courtesy of the probation office to hold off, it wasn't that they needed assistance[.]" Judge Olsen also found that Probation Officer Fox initiated the search of the vehicles.
Hughes has not convinced us that Judge Olsen's finding that Fox initiated the search of the vehicles as a probationary search was clearly erroneous.
See State v. Joubert, 20 P.3d 1115, 1118 (Alaska 2001).
Hughes next argues that the Glass warrants to monitor and record conversations between himself and Taylor (SW 02-12 and SW 02-34) were not based on probable cause because the State did not establish Taylor's credibility.
A search warrant may only be issued upon a showing of probable cause. "Probable cause to issue a search warrant exists when `reliable information is set forth in sufficient detail to warrant a reasonably prudent [person] in believing that a crime has been or was being committed.'"
AS 12.35.010.
Van Buren v. State, 823 P.2d 1258, 1261-62 (Alaska App. 1992) (quoting Badoino v. State, 785 P.2d 39, 41 (Alaska App. 1990)).
Probable cause may be established using an affidavit that relies on hearsay information from an informant. In State v. Jones, the Alaska Supreme Court held that, as a matter of state law, the Aguilar-Spinelli test governs the evaluation of hearsay information offered to support a search or seizure. The Aguilar-Spinelli test is derived from two decisions of the United States Supreme Court: Aguilar v. Texas, and Spinelli v. United States. This test requires that the government establish a hearsay informant's (1) basis of knowledge and (2) credibility.
706 P.2d 317 (Alaska 1985).
Id. at 321-22.
378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964).
393 U.S. 410, 89 S. Ct. 584, 21 L. Ed. 2d 637 (1969).
Jones, 706 P.2d at 320.
Hughes challenges the superior court's ruling that Investigator Widmier established Taylor's credibility. "An informant's credibility may be established by showing that the informant has been reliable in the past, or by independent police corroboration of detailed facts in the informant's story."
Id. at 325.
The Glass warrants were each supported by an affidavit from Investigator Widmier containing hearsay information from Taylor. In that affidavit, Investigator Widmier corroborated Taylor's description of Hughes and her knowledge that Hughes was on probation for a drug offense. Investigator Widmier also provided the court with the details of the January 15 controlled buy. The affidavit noted that the SDEU gave Taylor buy money and searched her before and after the transaction, and that Taylor gave Investigator Widmier a substance that tested positive for methamphetamine. Judge Wood concluded that the credibility prong was satisfied by this independent corroboration of detailed facts in the informant's story.
See id.; Ivanoff v. State, 9 P.3d 294, 298 (Alaska App. 2000).
Hughes argues that the affidavit does not establish Taylor's credibility because it does not detail the results of the trooper's search of Taylor after the purchase or specify whether the buy funds were left at the residence. In addition, Hughes argues that the affidavit is deficient because it does not indicate that anyone matching Hughes's description was seen at or near the residence during the transaction.
But we evaluate a search warrant in the light most favorable to upholding the warrant. And we consider the evidence in support of the warrant in a "reasonable and common sense manner," resolving marginal cases in favor of the warrant.
State v. Bianchi, 761 P.2d 127, 129-30 (Alaska App. 1988).
Linne v. State, 674 P.2d 1345, 1355 (Alaska App. 1983).
This is not a marginal case. A reasonable review of the facts in the affidavit establish that the police confirmed the status of the individual Taylor identified as Hughes. The affidavit also established that Taylor obtained methamphetamine from Hughes in the January 15 controlled buy. We therefore affirm Judge Wood's denial of Hughes's motion to suppress.
Hughes also argues that the search warrant for his residence was not supported by probable cause. Hughes advances the same arguments he raised concerning the Glass warrants: that the affidavit was inadequate because it failed to state that the buy funds were left at the house; failed to state that a person matching Hughes's description was seen at the house during the purchase; and did not show that Hughes sold Taylor methamphetamine.
But, as we indicated above, the court must view the facts in a reasonable and common sense manner and draw reasonable inferences from an affidavit. Viewed in this manner, the purported deficiencies Hughes cites do not compromise the warrant.
See Bianchi, 761 P.2d at 129; Linne, 674 P.2d at 1355.
Hughes also attacks the statement in the affidavit that Taylor made ten purchases of controlled substances "involving various defendants." According to Hughes, because the description of these purchases lacks details, the statement does nothing to bolster Taylor's reliability. But even without that statement, the affidavit contains sufficient facts to establish probable cause. The warrant to search Hughes's residence was based on evidence collected from three transactions Taylor completed with Hughes, two of which were recorded pursuant to the Glass warrants. The details of these transactions, as described in the affidavit, provided probable cause to believe that methamphetamine was present in Hughes's residence. We therefore affirm the superior court's rejection of this claim.
Finally, Hughes argues that the superior court should have suppressed the evidence acquired pursuant to the Glass warrants because the State failed to comply with the notification requirements in the warrants. Alaska Criminal Rule 37(b) requires that, when the State confiscates property, the officer must give the person from whom the property is taken a copy of the warrant, a copy of the supporting affidavits, and a receipt for the property taken. In this case, both Glass warrants relieved the State of its duty to leave documents with Hughes. Nevertheless, both warrants required the State to notify Hughes of the search and seizure within ninety days. Investigator Widmier failed to comply with this notification requirement and did not apply for an extension to the requirement.
This was done pursuant to Alaska Criminal Rule 53.
In Steffensen v. State, we held that a violation of the notification requirement in Criminal Rule 37(b) would only result in suppression of the fruits of a validly issued Glass warrant if the violation was intentional or the delay in notification resulted in actual prejudice to the accused. Hughes does not argue actual prejudice as that principle is discussed in Steffensen.
900 P.2d 735 (Alaska App. 1995).
Id. at 739.
Hughes argues that Investigator Widmier's failure to comply with the notice requirement was intentional. To support his claim, Hughes points to two parts of Investigator Widmier's testimony in the suppression hearing. First, Investigator Widmier testified that he assumed that Hughes received all the details of the Glass warrant search when he was charged. Further, Investigator Widmier testified that he did not serve notice of the search on Lara Johnson (Hughes's partner) because she was not charged with a crime, and was "aware of what [was] going on." According to Hughes, Investigator Widmier's testimony established that he intentionally violated the notification requirement in the warrant.
Judge Olsen found there was no evidence that Investigator Widmier acted intentionally when he failed to notify Hughes within ninety days of the electronic searches. Judge Olsen heard Investigator Widmier testify and was able to evaluate his credibility. We conclude that Hughes has not demonstrated that Judge Olsen's findings are clearly erroneous. Should Judge Wood have recused himself?
See Joubert, 20 P.3d at 1118.
Hughes argues that Judge Wood should have recused himself from Hughes's case because Judge Wood, at the time of the trial, knew Investigator Widmier from out-of-court contacts. This issue was raised by Hughes's second attorney. At that time, Judge Wood told Hughes that he could file a motion for recusal but that he would not recuse himself unless he had to rule on Investigator Widmier's credibility at an evidentiary hearing: "I can tell you right now, unless it involves the court determining the credibility of [Investigator Widmier], I'm going to deny [the motion]."
A later attorney for Hughes filed a notice with the superior court describing the instances in which Judge Wood would necessarily have to evaluate Investigator Widmier's credibility. When Judge Wood was apprised of this issue, he assigned Judge Olsen to conduct the evidentiary hearings.
The State argues that Hughes did not preserve this issue for appeal because he did not move to disqualify Judge Wood in the superior court. The State argues that to allow Hughes to assert this claim without an adverse ruling below would sanction Hughes's "gambler's risk" of not moving to disqualify Judge Wood.
If Hughes had moved Judge Wood to recuse himself, AS 22.20.020(c) provided for immediate review by another judge if the initial recusal motion was denied. This would have created some record on which to evaluate Hughes's claim. As the record stands now, it contains only the bare statement that Judge Wood had a "counseling relationship" with Investigator Widmier, without any detail of the substance or scope of that relationship. And Judge Wood announced that he would not rule on a suppression motion that required him to judge Investigator Widmier's credibility. Accordingly, he assigned Judge Olsen to rule on those motions. Hughes did not object to this process.
We conclude that Hughes waived this issue by failing to move for Judge Wood's disqualification. And, even if Hughes did not waive the issue, the record is not sufficient to show any error on Judge Wood's part for not disqualifying himself.
Did Judge Wood properly disqualify the Public Defender Agency?
Taylor, the undercover informant, was represented by the Public Defender Agency in 2001 on forgery and theft charges, as well as in a probation revocation proceeding that arose out of a 1999 drug conviction. In November 2001, the Public Defender Agency withdrew from representing Taylor, and the Office of Public Advocacy was assigned to her case. The Office of Public Advocacy negotiated the agreement whereby Taylor would be a confidential informant for the State and assist in the surveillance of Hughes.
Hughes maintains that Judge Wood should not have removed the Public Defender Agency from his case. Hughes's argument is largely incorporated by reference from a petition for review he filed with this court during his trial. Appellate Rule 212(c)(1)(I) requires that parties' arguments in appellate briefs "contain the contentions of the appellant with respect to the issue presented, and the reasons therefore, with citations to authorities, statutes, and parts of the record relied on." In Brandon v. State, we found that one of the arguments in the defendant's brief did not comply with the Appellate Rules and was inadequately briefed because it incorporated by reference memoranda that had been submitted to the trial court. Likewise here, we conclude that Hughes's claim is waived for inadequate briefing.
778 P.2d 221 (Alaska App. 1989).
Id. at 229 n. 1 (citing Kristich v. State, 550 P.2d 796, 804 (Alaska 1976); Lewis v. State, 469 P.2d 689, 691-92 n. 2 (Alaska 1970); Bidwell v. Scheele, 355 P.2d 584, 587 (Alaska 1960)).
Should Judge Wood have declared a mistrial?
Before trial started, the court instructed Probation Officer Hines, one of the State's witnesses, to refrain from mentioning that he was a probation officer or that Hughes was on probation. Judge Wood ruled that this evidence was not relevant.
During Investigator Widmier's testimony that same day, Widmier made reference to Hughes's probation status:
The prosecutor: Now did — during your investigation did you check on whose residence this cabin was that we're talking about?
Widmier: Yes, I did.
The prosecutor: And how did you check — how did you check on that?
Widmier: By — by courtesy phone call I contacted the probation office.
Hughes objected and moved for a mistrial. Judge Wood instructed Investigator Widmier, outside the jury's presence, that he was not to discuss probation any further. Judge Wood found, at that point, that there was no connection between Investigator Widmier's comment regarding the probation office and Hughes's probation status, and he denied the motion.
Hughes argues that Investigator Widmier's testimony warranted a mistrial because the only inference the jury could draw from Investigator Widmier's remark was that Hughes was on probation. According to Hughes, the trial court acknowledged the seriousness of the statement but "failed to recognize that this was a direct violation of the Court's protective order by an experienced trooper, who was present when the court instructed the State not to mention probation."
The trial court is vested with broad discretion to determine whether a mistrial should be granted because that court has the opportunity to hear the tainted evidence as it is presented and observe its impact on the jury. And when there is "overwhelming evidence" of a defendant's guilt, and "no realistic possibility of appreciable prejudice resulting from [a] single, passing reference" to a prior conviction, a mistrial is not warranted.
Brown v. State, 693 P.2d 324, 327 (Alaska App. 1984).
Malemute v. State, 791 P.2d 624, 626 (Alaska App. 1990). See also Preston v. State, 615 P.2d 594, 603-04 (Alaska 1980); Hines v. State, 703 P.2d 1175, 1178-79 (Alaska App. 1985).
From our review of the record, we conclude that Hughes has not shown that Judge Wood's denial of Hughes's mistrial motion was an abuse of discretion. Hughes's sentence is not excessive
See Brown, 693 P.2d at 327.
Hughes was convicted of ten felony counts: four class A felonies, four class B felonies, and two class C felonies. As a second felony offender, Hughes was subject to a presumptive term of 10 years for each class A felony, 4 years for each class B felony, and 2 years for each class C felony. Judge Wood found that aggravator AS 12.55.155(c)(20) (that Hughes was on parole or probation for another felony conviction) applied to all the convictions. Judge Wood also found that mitigator AS 12.55.155(d)(14) (as numbered under the former statute) (that the offense involved small quantities of a controlled substance) applied to the class C felonies. Judge Wood imposed a composite sentence of 15 years with 3 years suspended, a net 12-year term to serve.
See former AS 12.55.125(c)(3), (d)(1), (e)(1), respectively.
In Farmer v. State, we held that, when a defendant is sentenced for multiple crimes, the presumptive term for the most serious offense serves as a benchmark that should not be exceeded without "good reason." Judge Wood was aware of the Farmer rule and found that Hughes's poor performance on probation warranted imposing a sentence to serve that exceeded the 10-year presumptive term for Hughes's most serious felonies.
746 P.2d 1300 (Alaska App. 1987).
Id. at 1301.
From our review of the record, we conclude that Hughes's composite sentence is not clearly mistaken. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).
The judgment of the superior court is AFFIRMED.