Opinion
Court of Appeals No. A-10204.
December 23, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Douglas Blankenship, Judge, Trial Court No. 4FA-07-579 CR.
David Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Diane L. Wendlandt, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
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 precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
Eugene Fields was charged with a single count of misconduct involving a controlled substance in the fourth degree, a class C felony, for possessing cocaine. The State offered evidence that a state trooper discovered cocaine both in the driver's storage area of Fields's truck and, later in the day, found cocaine residue in various places at Fields's residence. Fields presented evidence that when he was out of town, others had used cocaine in his residence and had left the cocaine in his truck. He testified he was unaware of the presence of the cocaine. The jury convicted Fields.
AS 11.71.040.
On appeal, Fields argues that Superior Court Judge Douglas Blankenship committed plain error in failing to instruct the jury that it had to unanimously agree whether Fields was guilty of possessing the cocaine in his truck or in his residence or both. We do not find plain error.
Factual and procedural background
In January 2007, Alaska State Trooper Brian Wassmann was investigating a burglary and theft and wanted to interview Fields in connection with that case. He discovered that Fields was on supervised probation. He contacted Fields's probation officer. The probation officer gave the trooper Fields's address and asked the trooper to have Fields take a breath test and to search Fields and his vehicle for contraband if he contacted him.
On January 24, 2007, Trooper Wassmann contacted Fields. Fields was in a truck. When the trooper searched the truck, he found a little plastic bag of white powder in a storage pocket on the driver's side door. Trooper Wassmann stated that he could see the little plastic bag of white powder very easily, that it was "in plain view." The white powder tested positive for cocaine.
Trooper Wassmann called Fields's probation officer. The probation officer directed the trooper to arrest Fields for a parole violation and asked him to search Fields's apartment for contraband. The trooper had the car impounded. He then drove to Fields's apartment and searched the apartment. He found a scale inside a drawer in the kitchen that had white powder on it that later tested positive for cocaine. He found a spoon on a counter near the refrigerator that contained burned residue that tested positive for cocaine. In the bathroom, he discovered household straws that had been cut down. He stated that he recognized these as paraphernalia for ingesting cocaine. He also found cellophane wrappers underneath the bathroom sink cabinet that contained faint white powder residue. This also later tested positive for cocaine.
Several days later, Trooper Wassmann obtained a warrant to search Fields's truck for further contraband. When he searched the truck, he found marijuana inside a plastic grocery bag that was tied loosely to the gearshift on the center floorboard of the truck.
Based on the cocaine found in Fields's truck and the cocaine residue found in his house, the State charged Fields with a single count of knowingly possessing cocaine on or about January 24, 2007. The State also charged Fields with possessing less than one ounce of marijuana, also on or about January 24, 2007.
AS 11.71.040(a)(3)(A).
AS 11.71.060(a)(2).
At trial, Fields testified that he had not known about the presence of the cocaine or marijuana. He supported his defense with the testimony of Melvin Roberts.
Roberts testified that he was watching Fields's residence while Fields was out of town. During this time, Roberts and another man met two young women and went back to Fields's apartment. He discovered the women using cocaine and made them leave. Later, Roberts borrowed Fields's truck and encountered the same women who had been at Fields's apartment. The women smoked marijuana in the truck. After the women got out, Roberts stated that he found a small bag of cocaine on the seat, which he threw into a pocket on the driver's side door.
At the close of the evidence, the jury convicted Fields of possession of cocaine. The jury acquitted Fields of possession of marijuana.
Judge Blankenship did not instruct the jury that it had to unanimously agree on whether Fields possessed the cocaine in his vehicle or in his residence or both. But Fields never objected. He therefore must establish plain error. In Potts v. State, we indicated that "[a] plain error is one that is (1) so obvious that it must have been apparent to a competent judge and a competent lawyer even without an objection and (2) so substantially prejudicial that failing to correct it on appeal would perpetuate a miscarriage of justice."
712 P.2d 385 (Alaska App. 1985).
Id. at 390 (citations omitted).
204 P.3d 1036 (Alaska App. 2009).
When a jury instruction is challenged for the first time on appeal, the party challenging the instruction must show plain error. In the context of jury instructions, [p]lain error exists when [the] jury instruction obviously create[d] a high likelihood that the jury w[ould] follow an erroneous theory resulting in a miscarriage of justice.
Id. at 1040-41(footnote and internal quotations omitted).
We find no plain error in Fields's case because the record suggests that the defense attorney had a tactical reason for failing to seek a jury instruction that would require the jurors to render special verdicts with respect to each location where cocaine was found (the vehicle and the residence).
Although Fields was indicted on a single count of cocaine possession, the testimony presented by the defense indicated that the cocaine in Fields's residence and the cocaine in his vehicle arrived there at different times, and by different means. If, after presenting this testimony, the defense attorney demanded that the jury return separate verdicts with respect to each location where cocaine was found, there was a risk that the prosecutor would ask the trial judge to declare the single-count indictment to be duplicitous, and to divide the indictment into two separate counts — thus potentially increasing Fields's punishment in the event that he was convicted.
See Carman v. State, w here this court held that the rule against duplicitous counts in an indictment "is a rule of pleading[,] not substance," and that the remedy for this charging error is not dismissal of the indictment, but rather a division of the improperly joined charges into separate counts in the same indictment.
658 P.2d 131 (Alaska App. 1983).
Id. at 139; see also Khan, 204 P.3d at 1042.
We express no opinion on the ultimate issue of whether the testimony at Fields's trial would have supported two separate convictions for possession of cocaine. For present purposes, it is sufficient that a defense attorney could reasonably foresee that the prosecutor might request separate convictions.
Moreover, Fields's strategy at trial was to offer a consistent exculpatory explanation for the presence of the cocaine in both locations: that the cocaine had been put there by the visiting women, and that Fields had no knowledge of its presence.
Given this defense strategy, and given the risk that the prosecutor might seek to divide the indictment into two separate counts of cocaine possession if Fields raised the issue of jury unanimity, Fields's attorney had a significant tactical reason to refrain from pursuing this matter. Accordingly, we find no plain error.
Additionally, it appears unlikely that Fields's trial was rendered fundamentally unfair by the absence of a special jury unanimity instruction. As we noted above, Fields presented one basic defense to the presence of the cocaine in both locations: the assertion that the cocaine was placed there by the women, and that Fields did not know that the cocaine was there. Fields was fully able to present and argue this unitary defense to the jury. The absence of a special jury unanimity instruction did not prejudice the fairness of the trial so substantially that our affirmance of Fields's conviction "would perpetuate a miscarriage of justice." For this additional reason, we find no plain error.
Potts, 712 P.2d at 390.
The judgment of the superior court is AFFIRMED.