Opinion
Court of Appeals Nos. A-8717 A-8719.
July 20, 2005.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger, and Charles R. Pengilly, Judges. Trial Court Nos. 4FA-02-817 Cr 4FA-95-4091 Cr.
James M. Hackett, Law Office of James M. Hackett, Fairbanks, for the Appellant.
John A. Scukanec, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Gregg D. Renkes, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Seneca L. White was convicted of fourth-degree misconduct involving a controlled substance. In this appeal, White argues that the superior court erred in denying his motion to compel discovery of an electronic alerting device that the police had used to detect when a mail package containing cocaine was opened. Next, White argues that the superior court erred when it found that the State had proven two aggravating factors and that White had proven no mitigating factors at sentencing. Finally, White argues that his 7-year sentence is excessive.
AS 11.71.040(a).
We reject White's first argument because the superior court properly concluded when it ruled on the motion that disclosure of the device would be inconsistent with law enforcement concerns and of limited relevance to White's defense. We reject White's second argument because he has not demonstrated that Judge Steinkruger was clearly erroneous in finding two statutory aggravating factors and no mitigating factors. Finally, we conclude that White has not shown that the total time he must serve in this case and in a case in which his probation was revoked, 7 years, is clearly mistaken.
Facts and proceedings
Postal Inspector William Skytta suspected that an express mail package that was routed through Anchorage and that was addressed to Troy Moore at a Fairbanks address contained contraband. After an investigation, Skytta obtained a search warrant from the federal district court in Anchorage and opened the package. Inside the package he discovered a small wrapped bundle containing approximately 500 grams of cocaine.
Skytta obtained an order from the federal court authorizing him to install an electronic alerting device in the package. The device was designed to signal when the package was opened and the inner bundle removed. Inspector Skytta removed almost all of the cocaine from the small wrapped inner bundle, leaving only approximately 2.1 grams.
Skytta took the reassembled package to Fairbanks where the police obtained a search warrant from the state district court. The search warrant allowed the police to search the apartment to which the package was addressed after the alerting device had signaled. Inspector Skytta — dressed as a mail carrier — delivered the package to Moore at the apartment. Soon thereafter, when Moore was outside the apartment, the alerting device signaled. The police detained Moore outside the apartment and knocked at the door without identifying themselves. When White's girlfriend came to the door, the police detained her outside the apartment and knocked again without identifying themselves. A police officer stationed outside the back of the apartment watched White run out the back door and throw a backpack into a nearby garbage dumpster. The police found White hiding in another part of the apartment complex and detained him. They retrieved the backpack from the dumpster; the backpack contained the small wrapped (and unopened) bundle, which contained the 2.1 grams of cocaine.
The grand jury indicted White for one count of fourth-degree misconduct involving a controlled substance (possession of cocaine). White moved to compel discovery of the electronic alerting device used by police so he could examine its design and function. The State opposed the motion, submitting an affidavit from Skytta that asserted reasons why law enforcement would be compromised if White inspected the device. Superior Court Judge Niesje J. Steinkruger denied White's motion, ruling that the motion failed to provide specific information on which the court could determine whether the information White sought was relevant to White's defense. Judge Steinkruger invited White to file a supplemental motion to compel. Judge Steinkruger also directed the State to request an in camera hearing if it elected to present evidence regarding the electronic alerting device.
White filed a supplemental motion to compel discovery, along with an affidavit from a defense investigator in which the investigator stated that he had researched the alerting device on the Internet for approximately five hours, but could not obtain any useful information. In response, the State filed a sealed affidavit. Judge Steinkruger also held an in camera hearing on White's supplemental motion. Judge Steinkruger denied White's supplemental motion.
White was convicted at trial. As a third felony offender, White was subject to a presumptive 3-year term. Judge Steinkruger imposed the maximum 5-year sentence.
See AS 12.55.125(e)(2).
See AS 12.55.125(e).
In 1997, White had pleaded no contest to one count of second-degree sexual abuse of a minor. Because White's conviction for misconduct involving a controlled substance constituted a probation violation, Superior Court Judge Charles R. Pengilly revoked the remainder of White's suspended imprisonment, 2 years. Thus, White received 7 years of imprisonment in both cases. White appeals.
AS 11.41.436(a).
Did the superior court err in denying White's motion to compel discovery of the electronic alerting device used by police?
White argues that the superior court should have allowed White access to the electronic alerting device used by police. White argues that such discovery may have disclosed (1) that the device actually failed to alert; (2) that law enforcement authorities manipulated the device so that it alerted; or (3) that the device alerted earlier than the State contends.
White argues that if discovery had disclosed either situation (1) or (2) above, White would have had grounds to file a motion to suppress evidence seized pursuant to the warrant on the ground that it was illegally obtained. White argues that if discovery had disclosed any of the three situations above, he would have had information undermining the credibility of the State's trial witnesses. White claims that by undermining the witnesses' credibility, he might have created a reasonable doubt of his guilt at trial and thus been acquitted. We review the superior court's denial of White's motion to compel for an abuse of discretion.
See Gunnerud v. State, 611 P.2d 69, 72-73 (Alaska 1980).
Alaska Rule of Criminal Procedure 16 (a) provides: "In order to . . . expedite trial, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, and the adversary system." Subsection (d)(6) of the rule also provides that the trial court may deny or regulate discovery:
Upon request of any party, the court may permit: (i) any showing of cause for denial or regulation of disclosure, or (ii) any portion of any showing of cause for denial or regulation of disclosure to be made to the court in camera ex parte. A record shall be made of such proceedings. If the court enters an order granting relief following such a showing, the entire record of the proceedings shall be sealed and preserved in the records of the court, to be made available to the court of appeals and the supreme court in the event of an appeal.
In Braham v. State, the Alaska Supreme Court specified the parameters that control the trial court's restriction of discovery under Rule 16:
571 P.2d 631 (Alaska 1977).
Non-disclosure [is] proper only if (1) the prosecution showed that discovery of the evidence would be inconsistent with protection of persons or enforcement of the laws and (2) the trial judge concluded that the material was not relevant to the defense. If the district attorney failed to show that disclosure would harm enforcement or protection efforts, the material must be disclosed. The question of relevance would then be decided in an adversary context; both counsel would have the opportunity to make their respective arguments.
Disclosure is also required if the judge's in camera inspection showed that the material was relevant to the defense — whether or not the prosecutor had demonstrated that discovery would be inconsistent with enforcement or protection efforts. In the latter circumstance, the [S]tate must decide between continuing to prosecute, while incurring the problems posed by disclosure, and terminating the prosecution in order to maintain the material's secrecy.
Id. at 643 (footnote omitted).
Judge Steinkruger ruled before trial that discovery of the electronic alerting device was inconsistent with law enforcement concerns and that the record did not show that the device was relevant to White's defense. Judge Steinkruger relied on an affidavit from Postal Inspector Skytta to conclude that discovery was inconsistent with law enforcement concerns. Inspector Skytta's affidavit stated that disclosure of the device would allow criminals to detect such devices in future investigations and that disclosure would compromise those investigations and jeopardize officer safety. Judge Steinkruger also found that discovery of the alerting device would not make more or less probable whether the device in White's case had alerted when the package was opened.
Judge Steinkruger reasoned that discovery of the device was not relevant to White's defense because White had not presented any evidence or claim that the device did not alert when the package was opened. Judge Steinkruger distinguished the alerting device from a device such as a breath testing machine because the accuracy of a breath test is relevant. Here, White did not present evidence that the alerting device did not function as described. Judge Steinkruger found that the device apparently functioned correctly because it alerted and because that was its only intended purpose: "[t]he device is a simple on-off switch that alerts when the package is opened. It does not record voice or otherwise indicate who opened the package." Finally, Judge Steinkruger found that disclosure was not necessary because White could address, during trial, the arguments raised in the motion to compel — i.e., who opened the package and for whom the package was intended — without discovering the information sought.
Regarding the first issue in the Braham analysis — whether discovery is inconsistent with law enforcement — Inspector Skytta stated in his affidavit that disclosure of the design and function of electronic alerting devices would irreparably compromise future investigations because it would enable suspects to develop methods to detect such devices, thus impairing investigations and jeopardizing officer safety. In his supplemental motion to compel discovery, White expressed doubt that the State's general claim that discovery was inconsistent with law enforcement could be substantiated. Even though White was aware of Skytta's affidavit that was filed in open court, White failed to counter the State's argument or present evidence to the contrary. Based on Inspector Skytta's affidavit, Judge Steinkruger found that disclosure of the alerting device would be inconsistent with law enforcement. Because Inspector Skytta's affidavit supports the State's claim and because White did not counter the State's evidence or argument, Judge Steinkruger did not abuse her discretion in finding that disclosure of the device would be inconsistent with protection of persons and enforcement of laws.
The second issue in the Braham analysis is whether discovery of the device was relevant to White's defense. White's initial motion proffered that he had reviewed the police report showing that the police used the electronic device "which went off when the package was opened." Inspector Skytta's affidavit, filed in opposition to the motion, described that the function of the device was to transmit a slow beeping tone that changed to a faster beeping tone when a specific action occurred, such as opening a package. Judge Steinkruger initially ruled that White had offered only a general assertion of relevance to support discovery and that that assertion was insufficient to order discovery.
When White filed the supplemental motion for discovery, he argued that the State had relied on the alerting device at grand jury to identify White as the person who opened the package. Even so, White's motion only offered speculative possibilities of the device's malfunction. He provided no evidence that the package was opened at some other time than when the device signaled that the package was opened.
In Schmid v. State, a case decided after Braham, the Alaska Supreme Court analyzed the application of the informer's privilege in Alaska Criminal Rule 37(d). The court ruled that the purpose for which the challenged evidence is used is essential to the court's determination whether to grant or deny a motion to compel.
615 P.2d 565 (Alaska 1980).
The Schmid court followed the United States Supreme Court's approach regarding the "informer's privilege" — the government privilege against disclosing an informant's identity. The Schmid court relied on Roviaro v. United States. In Roviaro, the Supreme Court recognized that the purpose of the privilege is to promote effective law enforcement, and that the privilege encourages citizens to communicate knowledge of illegal activity to police officers by preserving an informant's anonymity. The Roviaro court balanced the interest in effective law enforcement against the defendant's right to prepare a defense. The Schmid court was persuaded by the Supreme Court's statement that whether disclosure should be compelled "`must depend upon the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'"
Id. at 570-72.
353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957).
Roviaro, 353 U.S. at 59, 77 S.Ct. at 627.
Id. at 60-61, 77 S.Ct. at 628.
Schmid, 615 P.2d at 570 (quoting Roviaro, 353 U.S. at 62, 77 S.Ct. at 629-30).
The Schmid court described the burden resting on a defendant seeking disclosure of an informant's identity:
The defendant has the burden of showing a need for the informant's disclosure which is material to his defense. A simple assertion that the information is needed is insufficient to meet that burden for the reason that allowing mere speculation would effectively defeat the informer's privilege.
Id. at 571 (citations omitted).
The court stated that a defendant should "demonstrate a reasonable possibility that the anonymous informant could give evidence on the issue of guilt or innocence which might result in the defendant's exoneration."
Id. at 572 (citations omitted).
These same considerations are useful when deciding whether to order discovery of an object such as the device in question here. Although White was not seeking to compel discovery of an informant's identity, he did seek to compel discovery of the electronic alerting device.
As we noted above, the Schmid court stated that a defendant must show that an informant could give evidence on the defendant's guilt or innocence in order to obtain disclosure. At trial, the State presented evidence that White was the only person in the apartment when the device signaled and argued that this circumstantial evidence supported the conclusion that White opened the package and knew its contents. Although this was not the state of the record before Judge Steinkruger when she denied discovery, it was clear that White argued that the State would use the fact that the device alerted when he was alone as evidence against him at trial. Still, while the motion was pending, White presented no evidence claiming that the device alerted at some other time, did not alert at all, or that the package had been opened by someone else. Essentially, White sought to inspect the device to pursue several speculative claims.
After examining the record, we conclude that Judge Steinkruger could reasonably find that White had not established a sufficient showing to require discovery of the alerting device. Therefore, we conclude that her ruling was not an abuse of discretion.
See Cockerham v. State, 933 P.2d 537, 543-44 (Alaska 1997); Dana v. State, 623 P.2d 348, 355 (Alaska App. 1981) ("[Defense counsel] did not make any showing that the [discovery] he wanted . . . would be more than a fishing expedition for unspecified material[.]").
Moreover, even if Judge Steinkruger erred, we conclude that any error was harmless. When Skytta testified at White's trial before Superior Court Judge Mary E. Greene, Skytta testified under cross-examination that the alerting device had previously malfunctioned. Thus, although White was not allowed pre-trial access to the alerting device, he did elicit testimony that allowed him to argue that the device malfunctioned.
Furthermore, White defended on the ground that he did not "knowingly possess" the cocaine when he fled the apartment because the inner bundle that was removed from the express mail package was unopened when White threw it into the dumpster. At White's request, the superior court instructed the jury on "fleeting possession" of the cocaine, and White argued that he did not have knowing possession of the cocaine because he was only innocently disposing of the package.
A trial court's error is harmless if it "did not appreciably affect the jury's verdict." We conclude that any possible error in Judge Steinkruger's ruling did not appreciably affect the jury's verdict. Whether or when the device alerted was not material to White's defense that he had only innocent possession of the cocaine while trying to dispose of it. Specifically, the denial of the motion to compel did not forestall White's defense that the package had been intended for Moore, or that someone other than White might have opened the package if the device did not function as the State's witnesses testified that it did. Accordingly, any potential error in not ordering discovery was harmless.
Love v. State, 457 P.2d 622, 632 (Alaska 1969).
Finally, White argues that if discovery of the device had disclosed that the device did not alert or that the police caused the device to alert, he would have had grounds to file a motion to suppress evidence seized pursuant to the warrant on the ground that it was illegally obtained. In the discussion of the informer's privilege in the Schmid case, our supreme court noted that the government must meet a higher standard to overcome discovery when the evidence sought is relevant to guilt or innocence at the trial stage; the standard is lower when the defense seeks to use discovery for an attack on probable cause to support an arrest or a search. Because we concluded above that Judge Steinkruger did not abuse her discretion in denying discovery that White claimed was relevant to his guilt or innocence, she also did not abuse her discretion when the discovery was sought for an attack on probable cause.
See Schmid, 615 P.2d at 570-72.
Moreover, White did not file a motion to suppress in the superior court. Because White did not pursue a search and seizure issue in the superior court, he has not preserved this argument for appeal.
See Plate v. State, 925 P.2d 1057, 1067 (Alaska App. 1996) (order on rehearing) (ruling that appellant had to show that it had presented its argument to the trial court, and that if it could not, then appellant had waived the issue for appeal); see also Moreau v. State, 588 P.2d 275, 279-80 (Alaska 1978) (ruling that suppression claims generally cannot be raised for the first time on appeal). Furthermore, assuming the officers executed the search warrant, White has not identified what evidence was seized when the warrant was executed.
White's challenges to Judge Steinkruger's findings on aggravating and mitigating sentencing factors
White argues that the superior court was clearly erroneous in finding statutory aggravating factors AS 12.55.155(c)(10) — that White's conduct was among the most serious within the definition of the offense — and (c)(25) — that White's case involved a large quantity of a controlled substance. White also argues that the court erred in not finding statutory mitigating factor AS 12.55.155(d)(14) — that White possessed only a small quantity of a controlled substance.
The party asserting an aggravating or mitigating factor must establish that factor by clear and convincing evidence. We review the trial court's decision on whether an aggravating or mitigating factor exists under the "clearly erroneous" standard of review. We review a trial court's decision on whether and to what extent to adjust a defendant's sentence because of an aggravating or mitigating factor under the "clearly mistaken" standard of review.
AS 12.55.155(f).
Lepley v. State, 807 P.2d 1095, 1099 n. 1 (Alaska App. 1991).
Id.
Fourth-degree misconduct involving a controlled substance is a class C felony. Judge Steinkruger found that this offense was White's third felony conviction. At the time of White's sentencing, the presumptive term for a third felony conviction was 3 years. White conceded two aggravating factors, AS 12.55.155(c)(7) — that White had committed a prior felony of a more serious nature — and (c)(20) — that White was on probation for a previous felony conviction at the time of the offense. Judge Steinkruger found four additional aggravating factors: AS 12.55.155(c)(21) — that White had a criminal history of conduct similar in nature to the present offense; (c)(24) — that White transported a controlled substance into the state; (c)(25) — that White was convicted of a crime involving a large quantity of a controlled substance; and (c)(10) — that White's conduct was among the most serious included in the definition of the offense. Judge Steinkruger also found that White had failed to establish mitigating factor AS 12.55.155(d)(14) — that White's conviction involved a small quantity of a controlled substance.
AS 11.71.040(d).
Former AS 12.55.125(e)(2) (2004).
Judge Steinkruger considered several of the Chaney sentencing criteria (codified at AS 12.55.005), noting that White's potential for rehabilitation was low and that deterrence of White and of others was an important consideration. Judge Steinkruger found that aggravator (c)(10) — that White's conduct was among the most serious included in the definition of the offense — merged with aggravators (c)(24) and (c)(25) — transporting a controlled substance into the state, and large quantity of a controlled substance, respectively.
State v. Chaney, 477 P.2d 441, 443 (Alaska 1970).
Judge Steinkruger also found that White was an aggravated offender, that White had re-offended despite rehabilitative intervention, and that White was willing to involve other people in crime. Based on the aggravating factors and Chaney sentencing criteria, Judge Steinkruger sentenced White to 5 years' imprisonment.
White challenges the superior court's finding of aggravating factor (c)(25) — that White's offense involved a large quantity of a controlled substance — on two grounds.
White first argues that Judge Steinkruger erred in finding aggravating factor (c)(25) because the State did not have jurisdiction over the entire 500 grams of cocaine, but only over the approximately 2 grams that remained in the package after the officers had intercepted the package and delivered it to White. Without explaining how the case supports his argument, White merely states that he cited Johnson v. Johnson at the sentencing hearing. In addition, White quotes the Johnson opinion: ". . . a search warrant is more than just a means of establishing [personal jurisdiction]. It also enables a court to exercise jurisdiction over the property seized pursuant to it. It follows, then, that the state court in this case had jurisdiction over the money `to the exclusion of' the [Drug Enforcement Administration] as a result of the search warrant."
849 P.2d 1361 (Alaska 1993).
Id. at 1364.
In Johnson, the Alaska Supreme Court held that the City of Fairbanks had improperly transferred property seized during a search of the defendant's home to the federal Drug Enforcement Administration (DEA), and thus, that the City was liable for conversion of the money seized from defendant's home. The court rejected the City's argument that because the DEA had "adoptively seized" the defendant's money and subsequently instituted forfeiture proceedings for the money, the DEA, rather than the state court, exercised exclusive jurisdiction over the seized money. The court ruled that the state court had exercised jurisdiction over the seized money by issuing the search warrant that allowed police to seize the money, and that because a state statute prevented the City from transferring seized property under the facts of the case, the City's transfer of the money to the DEA worked a conversion of defendant's money.
Id. at 1364-65.
Id.
Id.
Here, White has presented no evidence that state police transferred the seized cocaine under the "adoptive seizure" process to a federal agency, or that a federal agency (ostensibly the Postal Service) instituted forfeiture proceedings for the cocaine. (Though it does not affect the outcome of the jurisdiction argument, the 500 grams of cocaine were originally discovered in the package pursuant to a federal warrant, while the state warrant authorized a search of Moore's apartment after the alerting device signaled that the delivered express mail package had been opened.) Nor has White shown that courts should apply the same analysis for purposes of sentencing factors that the Johnson court applied to determine jurisdiction of seized property. Thus, there is no evidence that the State failed to exercise jurisdiction over the entire 500 grams of cocaine, such that Judge Steinkruger could not find that White's conviction involved a large quantity of a controlled substance.
Furthermore, the State admitted all the cocaine as evidence in the superior court: the cocaine that was removed by Skytta after the package was opened pursuant to the federal search warrant, and the remaining cocaine that was delivered to Moore's apartment.
Next, White argues that Judge Steinkruger erred by finding aggravating factor (c)(25) because, while 500 grams may be a large quantity in some areas, it is not in others. Judge Steinkruger found that 500 grams was a large quantity, and that in such quantity, White had intended to sell cocaine, rather than use it personally. In Lausterer v. State, we ruled that, for purposes of aggravating factor (c)(25), eight ounces or more of cocaine is a large quantity. One gram is approximately 1/28th of an ounce, so 500 grams is approximately 17.9 ounces. Thus, 500 grams is more than double the quantity that established aggravator (c)(25) in Lausterer. In addition, Fairbanks Police Officer James O'Malley testified that the street value of 500 grams of cocaine was approximately $50,000.
693 P.2d 887 (Alaska App. 1985).
Id. at 891.
Webster's New World Dictionary of the American Language (2nd College ed. 1980).
White also argues that Judge Steinkruger erroneously rejected mitigating factor (d)(14). He argues that he possessed only the 2 grams of cocaine that were left after Skytta re-packed the express mail package. But Judge Steinkruger found that White's offense involved much more than the cocaine that White threw in the dumpster, because the total amount originally in the package was 500 grams. This finding supports Judge Steinkruger's rejection of the mitigating factor.
We conclude that Judge Steinkruger's findings that White possessed a large quantity of cocaine under (c)(25), and that White had not proven mitigating factor (d)(14) were not clearly erroneous.
See Lepley, 807 P.2d at 1099 n. 1.
Finally, White argues that Judge Steinkruger erred in finding aggravating factor (c)(10) — that White's conduct was among the most serious included in the definition of the offense — because White's case did not involve either weapons or violence.
But there is no requirement that a defendant's conduct must include the use of a weapon or violence against a person for that conduct to be among the most serious included in the definition of an offense. A sentencing court must base its determination that conduct is "among the most serious conduct included in the definition of the offense" on "an assessment of the specific facts of each case, viewed in relation to the most serious potential conduct constituting the offense charged." For example, in Murray v. State, we ruled that the trial court had not erred in finding a first-degree sexual abuse of a minor defendant to be a worst offender, although the defendant had not committed physical violence against the victim.
Juneby v. State, 641 P.2d 823, 841 (Alaska App. 1982), modified on other grounds, 665 P.2d 30 (Alaska App. 1983).
770 P.2d 1131(Alaska App. 1989).
Id. at 1140.
Judge Steinkruger found that, although White's conduct did not include physical violence, there was potential for violence. Judge Steinkruger also found that White's possession of the cocaine was planned, that it was sophisticated, that White possessed a large quantity of cocaine, that it was transported into Alaska, that White had recruited others to join him, and that White had intended to sell the cocaine, a more serious offense than possession of cocaine. At the sentencing hearing, the prosecutor stated that White had promised to pay Moore to receive the package, and that this involvement by Moore exposed Moore to potential criminal liability for possession of the cocaine. Judge Steinkruger was not clearly erroneous in finding that White's conduct was among the most serious included in the definition of the offense, based on the factors on which she relied. White's excessive sentence claim
See Benboe v. State, 698 P.2d 1230, 1231 n. 2 (Alaska App. 1985) (a defendant's conduct is "among the most serious" when it would support the defendant's conviction for a higher degree of the same crime).
See Lepley, 807 P.2d at 1099 n. 1.
White argues that the superior court was clearly mistaken in imposing a 7-year sentence. White emphasizes that a 7-year sentence is more than double the presumptive 3-year term for a third class C felony. But White fails to mention that he received a total of 7 years' imprisonment based not only on his conviction for fourth-degree misconduct involving a controlled substance, but also on the revocation of probation in White's previous second-degree sexual abuse of a minor conviction.
Judge Steinkruger sentenced White to 5 years, rather than merely the presumptive 3-year sentence for a third felony offender, because she found that White was an aggravated offender, that White had re-offended despite rehabilitative intervention, and that White was willing to involve other people in crime. White has presented no argument that Judge Steinkruger was clearly mistaken in imposing 5 years on this charge, and the facts of the case and White's history support Judge Steinkruger's findings. We conclude that Judge Steinkruger's sentencing decision is not clearly mistaken.
In 1997, White was sentenced on the sexual abuse conviction to 6 years, with 4 years suspended. As a special condition of probation, White was forbidden from consuming or possessing a controlled substance without a doctor's permission. Judge Pengilly revoked White's probation because the conviction for possessing cocaine violated White's probation. Judge Pengilly revoked 2 years' suspended imprisonment because he found that, although White had been sentenced to the maximum 5-year term on the cocaine possession conviction, White's probation violation required a separate punishment. White has presented no argument that Judge Pengilly's sentencing decision was clearly mistaken. Therefore, White has not convinced us that the sentence imposed by Judge Pengilly is clearly mistaken.
Conclusion
The judgment of the superior court is AFFIRMED.
A package containing over a pound of cocaine was intercepted by postal authorities. The cocaine was contained in a small inner package within the larger outer package. The authorities removed all but a little bit of the cocaine, and then they put the inner package back inside the outer package. Before re-sealing the outer package, the authorities placed an electronic device inside it; this device was designed to "alert" when the inner package was removed from the outer package.
The package was addressed to the Fairbanks residence of Troy Moore. The postal authorities contacted the Fairbanks police, who obtained an anticipatory search warrant to enter and search this residence after the alerting device signaled that the package had been opened. The postal authorities then delivered the package to Moore's residence.
A few minutes later, the electronic device signaled that the outer package had been opened. As the police prepared to enter the residence, Seneca White ran out the back entrance of the apartment, carrying a backpack. As White ran, he threw the backpack into a Dumpster. When the police retrieved this backpack, they found that it contained the inner package. The inner package was still unopened, and it still held the small amount of cocaine. White was indicted for, and ultimately convicted of, possessing this cocaine.
The main issue presented in this appeal is whether the superior court should have ordered the federal government ( i.e., the United States Postal Service) to disclose the technical details of the alerting device that they placed in the outer package.
The pertinent law
There are no Alaska appellate decisions directly addressing the issue of whether a defendant can demand that the government disclose the technical details of devices such as the one that was used by the postal inspectors in White's case. However, there are Alaska decisions on the related issue of whether a defendant can demand that the government disclose the identity of a confidential informer.
The government has a qualified right to refuse to divulge the identities of confidential informants. See Alaska Evidence Rule 509. This right is "qualified" because, under certain circumstances, a defendant can demand disclosure of this information (or can demand relief from the court if the government refuses to disclose the information).
The courts have drawn a dividing line between (a) cases where a defendant seeks disclosure of a confidential informer's identity because the informer's knowledge or actions appear to be pertinent to the legality of a search or seizure, and (b) cases where a defendant seeks disclosure of a confidential informer's identity because the informer's knowledge or actions appear to be pertinent to the defendant's guilt or innocence.
When information concerning the informer is pertinent to an issue of search or seizure, the rule generally favors the preservation of confidentiality. See the United States Supreme Court's decision in McCray v. Illinois, 386 U.S. 300, 305-07; 87 S.Ct. 1056, 1059-1061; 18 L.Ed.2d 62, 68 (1967), and the Alaska Supreme Court's decision in Schmid v. State, 615 P.2d 565, 570-71 (Alaska 1980).
On the other hand, when information concerning the informer is pertinent to the defendant's guilt or innocence, the rule generally requires disclosure. See the United States Supreme Court's decision in Roviaro v. United States, 353 U.S. 53, 63-65; 77 S.Ct. 623, 629-630; 1 L.Ed.2d 639 (1957), and the Alaska Supreme Court's decisions in Schmid, 615 P.2d at 571-73, and Braham v. State, 571 P.2d 631, 641-45 (Alaska 1977).
The underlying facts, White's rationales for disclosure of the technical details of the electronic device, and the trial judge's rulings
As explained above, the electronic device employed in this case was designed to issue an "alert" when the inner package was removed from the outer package. Although the federal government did not wish to divulge the technical design of this device (because disclosure of this information might allow criminals to devise countermeasures), the government did offer a non-technical description of how the device worked.
According to an affidavit submitted by Postal Inspector William J. Skytta, the electronic alerting devices used by the Postal Service are designed to emit radio signals that can be picked up from a remote location. The devices can be set to perform one of two functions: either they remain silent until a specific event occurs (such as the opening of a package), or they constantly emit a signal (a slow beeping tone) until the specific event occurs, at which time they switch to a faster beeping tone. When the device is configured in this second way, the pre-event (slow beeping) signal that the device emits can be used to track the location of the object in which the device has been planted. In White's case, the electronic device was configured in this second way.
Inspector Skytta explained that, although the Postal Service's electronic device allows the authorities to track the physical location of a package (if the device is configured in the second way described above), the device does not monitor or record sound, nor does it provide any kind of measurement or capture any other kind of information. The device basically functions as an alarm (with the additional capability of functioning as a tracking device).
When White asked the superior court to order the federal government to disclose the technical details of the electronic device's design and functioning, he asserted that this information was relevant in various ways. Some of White's arguments concerned the entry and search of the residence. White suggested that the electronic device might have gone off prematurely — that is, before the outer package was actually opened — and that this might affect the legality of the officers' ensuing entry of the residence.
But as our supreme court explained in Schmid v. State, the general rule is that
[a] defendant's interest in discovering [an] informant's identity to facilitate an attack upon probable cause to arrest or search . . . is . . . insufficient to outweigh the public's interest [in preserving the confidentiality of this information]. . . . [T]he inhibition of unreasonable searches and seizures . . . is not considered a requirement of fundamental fairness because it does not affect the guilt or innocence of the defendant or the truth-finding function of the court. If disclosure is denied, the defendant's only penalty is to be judged by the "untarnished truth." McCray v. Illinois, 386 U.S. [at] 306-07, 87 S.Ct. [at] 1060. . . . See Moreau v. State, 588 P.2d 275, 288 (Alaska 1978) (court refused to apply plain error analysis to search and seizure issue first raised on appeal).
Schmid, 615 P.2d at 570 (one citation omitted).
The supreme court acknowledged the risk that the informer's privilege might be used "to shield misrepresentation . . . or [to conceal] illegal police activities". Nevertheless, the court concluded that if the facts of a particular case suggest potential misrepresentation or illegality, this possibility should be investigated by the court in an in camera hearing. See Alaska Criminal Rule 37(d) and Alaska Evidence Rule 509(c)(3). The court stated, "We believe that such a procedure fairly accommodates both the defendant's interest in disclosure on the issue of probable cause and the public's interest in nondisclosure to promote the flow of information."
Schmid, 615 P.2d at 571.
Id.
In White's case, Superior Court Judge Niesje J. Steinkruger concluded that there was no realistic possibility that the electronic device had gone off prematurely — since it was undisputed that, by the time the police reached the front door of the residence, the outer package had indeed been opened and White was getting ready to flee out the back door, carrying the inner package in his backpack. Based on these facts, Judge Steinkruger could properly conclude that the legality of the police entry could be fairly determined without even an in camera disclosure of the technical details of the electronic device.
However, White raised one additional argument in favor of disclosure. He asserted that he needed to know the technical details of the electronic device to rebut the prosecution's contention that White was alone with the package when it was opened — and that therefore White must have been the person who opened the package. In order to fully explain White's argument, it is necessary to describe a few more facts of White's case.
Why the timing of the electronic alert was relevant to the determination of White's guilt or innocence
Three people were in Troy Moore's residence when the authorities delivered the package. One of these people was Troy Moore, the occupant of the residence and the person to whom the package was addressed. The second person was White, and the third person was White's girlfriend, Amy McKnight. After the package was delivered, the police kept the residence under surveillance, waiting for the electronic device to "alert". While the police waited, both Moore and McKnight came out of the residence and stood on the porch. White joined them briefly, but then he went back inside. Soon after White re-entered the residence, the electronic device alerted ( i.e., it changed from a slow beep to a fast beep).
Later, after White and Moore were arrested, Moore asserted that he was not directly involved in the cocaine transaction — even though he was the named addressee of the package. Moore declared that White was the one who arranged the cocaine shipment, and that White had paid Moore five hundred dollars for permission to use Moore's name and his address as the delivery site of the package.
Moore eventually negotiated a deal with the State and testified against White. His testimony tracked his post-arrest explanation to the authorities.
In his motion seeking disclosure of the technical details of the electronic device, White contended (correctly, as it turned out) that, based on the series of events after the package was delivered to the residence, the prosecution would argue that White was the one who opened the package. White told the superior court that, in order to rebut this argument, it was crucial for White to learn the technical details of how the electronic device worked. In particular, White told the court that he needed to explore the possibility that nearby electromagnetic fields had somehow interfered with the authorities' ability to accurately determine exactly when the "alert" was emitted, and/or the possibility that this "alert" was not an accurate indicator that the package had been opened.
Judge Steinkruger denied White's motion because she concluded that there was no evidence suggesting that the electronic device had failed to function properly. She wrote,
Although . . . technical information about the device [might be] interesting, White has not argued or pointed to any evidence indicating that the device did not alert [when, and as soon as, the package was opened]. He simply argues that he wants to know how [these devices] work and how accurate they are. . . . [But] it appears that the device was accurate[,] because [shortly after] it alerted, the officers executed [the] search warrant pursuant to the alert, [and they found and] seized the [opened] package. . . .
Judge Steinkruger acknowledged White's argument that the timing of the alert was potentially inculpatory — since Moore and McKnight were apparently not inside the residence when the electronic device emitted its alert, and thus White was apparently the only one who could have opened the package. However, the judge concluded that White could litigate this issue without knowing the technical details of the electronic device:
[Any] theories about whom the package was [really] intended for[,] and who really opened it[,] are not affected by the [technical details of the operation of] the alerting device. The device is a simple on-off switch that alerts when the package is opened. . . . White can address these issues at trial without disclosure of the . . . technical information about the device.
As White suspected, the prosecutor did indeed argue at White's trial that the timing of the electronic alert was an important piece of inculpatory evidence. The prosecutor told the jurors that the timing of the electronic alert — that fact that the device went off while White was alone with the package — corroborated the State's assertion (and Moore's testimony) that White had a superintending role in the cocaine transaction.
My analysis of this issue
When information about a confidential informer is relevant to the determination of a defendant's guilt or innocence, courts will generally order the government to disclose this information. See Roviaro, 353 U.S. at 63-65, 77 S.Ct. at 6296-30; Schmid, 615 P.2d at 571-73; and Braham, 571 P.2d at 641-45. If this same principle is applied to White's request for technical information concerning the electronic device in this case, I believe it is a close question whether the superior court should have ordered disclosure of the information.
White identified a plausible way in which the timing of the alert might be relevant to the jury's determination of his guilt or innocence — because the timing of the alert tended to identify White as the person who opened the package. Indeed, the prosecutor actively pursued this theory when he argued the State's case to the jury.
And, because the timing of the alert was potentially relevant to the determination of White's guilt or innocence, one could argue that White was entitled to disclosure of the technical information concerning the operation of the electronic device, at least to the extent that this information would shed light on the possibility that the device had malfunctioned and had not emitted its alert until some appreciable amount of time after the package was actually opened.
Under White's theory, even though the police might truthfully testify that they received the alert at a time when White was alone with the package, this would not necessarily prove that the package was opened at that particular time. For this reason, White might reasonably seek disclosure of at least some of the kinds of technical details that he listed in his motion: in particular, details relating to the possibility that the alert had been delayed for some appreciable amount of time after the package was opened.
But even though White identified a plausible theory under which knowledge of the technical details of the electronic device might have been relevant to assessing whether the timing of the alert truly coincided with the opening of the package, White never presented the superior court with good reason to believe that this theory had any relevance to the facts of White's case — that this theory was anything more than a speculative possibility.
As Judge Steinkruger noted, the known facts of the case tended to show that the electronic device had worked as intended. The device was emitting a slow beep when it was delivered to the residence; the police waited outside and monitored the signal; the signal changed to the fast beep that indicated that the package had been opened; when the police entered the apartment some five minutes later, they discovered the opened outer package; and, at about the same time, White was in flight out the back of the residence, carrying the inner package in his backpack.
The question is: Under these circumstances, could Judge Steinkruger properly deny White's request for disclosure unless and until White presented some evidence to support his suggestion that the officers' reception of the electronic alert might not actually have coincided with the opening of the package? For instance, could Judge Steinkruger deny the requested disclosure until White or Moore or McKnight offered testimony that someone else ( i.e., someone besides White) had opened the package, or until White offered some other affirmative reason to believe that the electronic device had malfunctioned?
This issue — the presence or absence of foundational evidence to support the defendant's assertions of potential relevance — did not arise in Braham because, in Braham, the requested information was obviously relevant. The defendant in Braham conspired with a police informant to commit a murder, and this informant became the primary prosecution witness at Braham's trial for attempted murder. The confidential information that Braham sought — information relating to this informant's prior activities as an undercover narcotics agent — was obviously relevant to assessing the informant's bias.
Braham, 571 P.2d at 645.
But in Cockerham v. State, 933 P.2d 537 (Alaska 1997), the supreme court upheld the superior court's denial of an analogous discovery request because the defendant failed to establish reason to believe that any relevant material existed.
The defendant in Cockerham was convicted of sexually assaulting a sixteen-year-old girl. At Cockerham's sentencing hearing, the State proposed to present evidence that Cockerham had also sexually assaulted another minor, R.E. Cockerham, noting that the superior court had issued a warrant for R.E.'s arrest as a runaway, demanded disclosure (or at least in camera review) of R.E.'s juvenile records to see if those records contained information relating to "crimes of dishonesty [that] would bear on the credibility of [R.E.'s] testimony".
Cockerham, 933 P.2d at 538.
The supreme court acknowledged that, in Braham, it had recognized a defendant's due process right to obtain evidence in the possession of the State if that evidence would help to establish bias on the part of a witness testifying against the defendant. But the court concluded that the superior court had correctly denied Cockerham's discovery request because Cockerham "failed to make a showing sufficient to trigger a right to discovery".
Cockerham, 933 P.2d at 541, citing Braham, 571 P.2d at 645.
Cockerham, 933 P.2d at 543.
The connection between the fact [that] there was a warrant out for R.E.'s arrest as a runaway and the possibility she might have a juvenile record containing information tending to impeach her testimony that she was sexually assaulted by Cockerham is highly tenuous. Because Cockerham's attorney neglected to cross-examine R.E. on any subject related to credibility, any error on the part of the superior court in denying the motion for in camera review of the juvenile records did not deny Cockerham due process under Alaska's constitution.
This conclusion is buttressed by the court's characterization of the request as a "fishing expedition." Because Cockerham failed to make a sufficient showing that the records he requested would contain relevant impeachment evidence, and subsequently failed to cross-examine the witness on any matter relating to credibility, his constitutional right to due process under Article I, section 7 of the Alaska Constitution was not violated by the superior court's denial of his motion [for disclosure].
Cockerham, 933 P.2d at 543-44 (footnotes omitted). (See also the cases cited in footnote 19 of the Cockerham opinion.)
I conclude that White's request for disclosure in this case suffered from this same "fishing expedition" defect. White identified a plausible way in which the technical details of the electronic device might conceivably be relevant to his guilt or innocence — a suggestion as to how it might be possible that the transmission of the alerting signal (or the authorities' reception of this signal) did not accurately indicate the simultaneous opening of the package. But White offered no evidence to suggest that anything of this sort had actually happened.
Given this lack of foundational evidence, given the postal authorities' obvious interest in maintaining the secrecy of this technical information, and given our supreme court's decision in Cockerham, I conclude that the superior court properly denied White's request for disclosure of the technical details of the alerting device.