Opinion
Court of Appeals No. A-9996.
August 12, 2009.
Appeal from the Superior Court, Third Judicial District, Anchorage, Eric A. Aarseth, Judge, Trial Court No. 3AN-04-8193 CR.
Renee McFarland, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
On November 21, 2003, William Wassili brought a package containing alcohol to the counter of Hageland Aviation at the Anchorage International Airport. The package was addressed to Paul Thompson in the village of St. Mary's, which prohibits the sale and importation of alcohol. Jack E. Morrell had previously given the package to Wassili and driven him to the airport to deliver it.
Alaska State Trooper Gary Pacolt noticed Wassili delivering the package and became suspicious because it appeared heavy for its size. After some discussion with Pacolt, Wassili ultimately permitted the troopers to search the package but declined to remain there to watch. When Pacolt opened the package, he discovered that it contained several bottles of Canadian whiskey.
Trooper Pacolt then contacted the addressee, Paul Thompson, who referred the trooper to Morrell. Morrell acknowledged that he packed the box and that he knew St. Mary's prohibited alcohol. Morrell was then indicted on one count of importing liquor into a local option area, and was convicted after a jury trial.
AS 04.11.499, AS 04.16.200(e)(2), and AS 11.16.110(2)(A) or (B).
Vicarious Standing
Morrell filed a pretrial motion to suppress the fruits of the trooper's search, but the trial court denied the motion on the basis that Morrell lacked standing. Morrell argues in this appeal that he has vicarious standing to argue that Trooper Pacolt violated Wassili's constitutional rights. Under Alaska law, a defendant has standing to assert the violation of a codefendant's rights against unreasonable searches and seizures if the defendant can show: "(1) that a police officer obtained the evidence as a result of gross or shocking misconduct, or (2) that the officer deliberately violated a co-defendant's rights."
In the lower court, Morrell also argued that he had direct standing, but he does not renew this argument on appeal.
Waring v. State, 670 P.2d 357, 363 (Alaska 1983); see also Newcomb v. State, 779 P.2d 1240, 1244 (Alaska App. 1989).
The trial judge concluded that Morrell did not have vicarious standing to challenge the search of the package because Pacolt's conduct was not gross or shocking and was not an intentional violation of Wassili's rights. We believe this conclusion was amply supported by the evidence submitted at the hearing on Morrell's motion to suppress.
The judge listened to the recording of the exchange between Pacolt and Wassili. The judge found that the actual words spoken, the tone of Pacolt's voice, and the pace of the conversation did not indicate any coercion. The judge also noted that Wassili felt free to refuse to provide his father's contact information. After evaluating all of the testimony at the evidentiary hearing, the judge found that both Pacolt and Wassili's testimony showed that Wassili voluntarily consented to the trooper's search of the package. Accordingly, the judge concluded that Pacolt did not violate Wassili's rights.
In Newcomb v. State, we examined a similar case and concluded that the defendant did not have standing to challenge evidence stemming from the illegal arrest of an accomplice. Although the defendant presented evidence that the police were interested in apprehending him, we held that he did not have standing because he failed to show that the police intentionally conducted an illegal arrest of his accomplice with the intent of procuring evidence against the defendant.
Id.
Thus, Newcomb suggests that to have standing to challenge the search of Wassili, Morrell would have to show that the search was illegally undertaken with the motive of procuring evidence against himself. But there is ample support in the record for the trial judge's conclusion that the trooper primarily intended to obtain Wassili's consent to search the box; the trooper did not intend to violate Wassili's rights to obtain evidence against Morrell. Accordingly, Morrell fails to show that he has standing to challenge the search.
Consecutive Sentence
Morrell was sentenced on the importation charge in this case at the same hearing where he was sentenced on a separate conviction for second-degree murder. Morrell received 60 years' imprisonment with 10 years suspended on the murder conviction and a 1-year sentence in this case to run consecutively with the murder sentence. Morrell now appeals this sentence and argues that the sentencing judge misstated the law when he imposed the importation sentence consecutively to the murder sentence.
At the joint sentencing hearing, the court explained that "in terms of the importation case, the sentence by law must be consecutive to the sentence [the court] just announced in the murder case," because "it is a criminal act separate and distinct from the murder." Morrell now argues — and the State concedes — that the judge was clearly mistaken in his application of former AS 12.55.025(g).
Former AS 12.55.025(g) (2004) provided:
If the defendant has been convicted of two or more crimes before the judgment on either has been entered, any sentences of imprisonment may run concurrently if
(1) the crimes violate similar societal interests;
(2) the crimes are part of a single, continuous criminal episode;
(3) there was not a substantial change in the objective of the criminal episode, including a change in the parties to the crime, the property or type of property right offended, or the persons offended;
(4) the crimes were not committed while the defendant attempted to escape or avoid detection or apprehension after the commission of another crime;
(5) the sentence is not for a violation of AS 11.41.100 — 11.41.470; or
(6) the sentence is not for a violation of AS 11.41.500 — 11.41.530 that results in physical injury or serious physical injury as those terms are defined in AS 11.81.900.
Indeed, the judge was not required to impose consecutive sentences under former A S 12.55.025(g). A s construed in State v. Andrews, "if a case arguably falls within any of the subparagraphs [of this subsection], concurrent sentences are presumptively appropriate, though not mandatory." Thus, concurrent sentencing is permissible if a defendant falls under any of the subparagraphs in former AS 12.55.025(g).
707 P.2d 900, 908 (Alaska App. 1985).
In the present case, concurrent sentences were permissible under former AS 12.55.025(g)(4) because Morrell was not convicted of crimes committed while he attempted to escape or avoid detection after the commission of another crime. Although the judge was permitted to impose consecutive sentences, he was not required to do so. Conclusion
We AFFIRM Morrell's conviction for importing liquor into a local option area, but we VACATE the sentence and REMAND to allow the superior court to determine whether he should receive a sentence that is concurrent or consecutive to his sentence for second-degree murder in 3AN-04-1978 CR.
We will address issues relating to the murder conviction and sentence in a separate opinion.