Opinion
Court of Appeals No. A-10359.
May 25, 2011.
Appeal from the Superior Court, First Judicial District, Juneau, Patricia A. Collins, Judge, Trial Court No. 1JU-08-131 Cr.
Janella Combs Kamai, Johnson Combs, Kodiak, 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.
MEMORANDUM OPINION
Aaron W. Washington was convicted of over one dozen drug offenses, the most serious of which was the unclassified felony of first-degree controlled substance misconduct under AS 11.71.010(a)(3) — engaging in a "continuing criminal enterprise". In this appeal, Washington asserts that the evidence presented at his trial was insufficient to support his conviction for engaging in a continuing criminal enterprise.
Washington also argues that he was denied due process of law because the State refused to grant transactional immunity to several witnesses whom Washington wished to call in his defense (witnesses who would have incriminated themselves had they testified without immunity), and because the trial judge then refused to dismiss the charges against Washington based on the State's decision.
Finally, Washington argues that his composite sentence — 25 years' imprisonment with 10 years suspended, or 15 years to serve — is excessive.
For the reasons explained in this opinion, we conclude that none of W ashington's claims has merit, and we therefore affirm his convictions and his sentence.
Washington's claim that the evidence was insufficient to support his conviction for engaging in a continuing criminal enterprise as defined in AS 11.71.010(b)
Under the definition codified in AS 11.71.010(b), the State had to prove the following elements in order to support Washington's conviction for engaging in a continuing criminal enterprise: (1) Washington committed a felony violation of the drug laws codified in Title 11, chapter 71; (2) this felony was part of a continuing series of five or more violations of the drug laws; (3) Washington undertook this continuing series of drug offenses in concert with at least five other persons whom Washington organized, supervised, or otherwise managed; and (4) Washington obtained substantial income or resources from this series of offenses.
When a defendant challenges the sufficiency of the evidence to support a criminal conviction, this Court is obliged to view the evidence (and all inferences that can reasonably be drawn from that evidence) in the light most favorable to sustaining the jury's verdict. Here is the evidence in Washington's case, presented in that light:
Rantala v. State, 216 P.3d 550, 562 (Alaska App. 2009).
Washington moved to Juneau in the late spring of 2006. Washington quickly reconnected with Vonnie Williams, an old friend from college, who was a cocaine dealer. Washington soon became involved in the drug trade.
Washington and his girlfriend, Tanya Williams (also known as Tanya Brown), began making frequent trips to Seattle and New York to bring cocaine back to Juneau. Washington also arranged and paid for at least four other women to travel to the Lower 48 and carry cocaine back to Juneau for him.
In the fall of 2006, Washington opened a clothing store ("Fam Fashions"), and he used the store as a cover for his drug operation. At the peak of the operation, Washington (through his group of drug couriers) was importing approximately one kilogram ( i.e., 2.2 pounds) of cocaine per week into Juneau.
This evidence, if believed, was sufficient to support a reasonable conclusion that Washington committed numerous drug felonies (far more than the five required under AS 11.71.010(b)(2)), that these drug felonies were a continuing series of offenses from which Washington derived substantial income, and that Washington undertook these drug offenses in concert with at least five other persons whom Washington organized, supervised, or otherwise managed.
On appeal, Washington's primary argument is that he did not "organize", "supervise", or otherwise "manage" the other people who were importing drugs into Juneau. Rather, according to Washington, he was just one of a loosely affiliated group of drug dealers who were "seeking to bring larger quantities of cocaine into the Juneau area", and he "simply opened the door for more access to drugs".
This argument hinges on viewing the evidence in the light most favorable to Washington. But as we explained earlier, the law requires us to view the evidence in the light most favorable to upholding the jury's verdict. When we view the evidence in that light, it is sufficient to support Washington's conviction for first-degree controlled substance misconduct under the theory that he engaged in a continuing criminal enterprise.
Washington's claim that he was denied due process of law when the State declined to grant immunity to several potential defense witnesses, and when the trial judge then refused to dismiss the charges against Washington based on the State's decision
Washington's trial attorney informed the trial judge, Superior Court Judge Patricia A. Collins, that the defense wished to offer the testimony of four witnesses who were drug users or involved in the drug trade in Juneau. Judge Collins concluded that, at least potentially, each of these four witnesses had a Fifth Amendment right to refuse to testify, so she appointed attorneys for these witnesses.
After the four witnesses had a chance to confer with their lawyers, Judge Collins held in camera hearings for each of the witnesses, to determine the nature of their anticipated testimony and whether the witnesses had valid self-incrimination concerns. With respect to all four witnesses, Judge Collins concluded that the witness was properly invoking the privilege against self-incrimination.
The judge then conveyed this information to Assistant Attorney General Susan McLean (the attorney general's designee under AS 12.50.101). McLean informed Judge Collins that the State was not going to grant immunity to any of the witnesses.
When Washington's attorney was apprised of the Department of Law's decision not to grant immunity to the four witnesses, the defense attorney filed a motion asking the superior court to dismiss most of the charges against Washington. The defense attorney argued that the State's refusal to grant immunity to the defense witnesses resulted in a denial of due process and a violation of Washington's right to present a defense.
Judge Collins ultimately ruled that the State was acting within its proper discretion in refusing to extend transactional immunity to Washington's proposed witnesses — that there was no evidence that the State's decision was an attempt to improperly manipulate the judicial process.
Additionally, Judge Collins found (based on the offers of proof made by the defense attorney) that even though the witnesses' proposed testimony might have provided "additional ammunition for the defense in terms of impeachment and [witness] credibility issues", the proposed testimony did not have "crucial exculpatory value" with respect to any of the charges against Washington.
For these reasons, Judge Collins declined to dismiss the charges against Washington. Following this ruling, Washington's attorney asked for a mistrial; Judge Collins denied that motion as well.
Judge Collins's analysis and ultimate rejection of Washington's motion for dismissal of the charges was based on this Court's decision in Cogdill v. State, 101 P.3d 632 (Alaska App. 2004). In Cogdill, this Court laid out a test for determining whether a defendant is entitled to dismissal of criminal charges when the State fails to offer immunity to a proposed defense witness.
Under Cogdill, the defendant must demonstrate that the trial would be fundamentally unfair without the witness's testimony — that the proposed witness would provide "crucial, verdict-altering evidence". Id. at 636. If the defendant meets this test, then the trial court must determine whether the State has valid reasons for declining to immunize the witness. Ibid.
With respect to this latter issue, w e noted in Cogdill that the State generally has a valid reason to decline to extend immunity to witnesses who are apparently accomplices in the defendant's criminal acts, and who propose to offer testimony exculpating the defendant — since granting immunity to such witnesses "would likely engender collusion and witness-tampering." Ibid. In other words, there is a danger that such witnesses, after receiving transactional immunity for all crimes revealed by their testimony, would falsely claim responsibility for the offenses being litigated, thereby leading to the defendant's acquittal, and also leaving the State unable to prosecute the witness. There is also the danger that such witnesses, having received immunity for any crime described in their testimony, would testify about their participation in crimes that were previously unknown to the authorities.
Washington suggests that whenever a defendant is charged with engaging in a continuing criminal enterprise, it is natural that the witnesses for both the State and the defense might be drawn from the same criminal milieu. He argues that if the State is free to immunize its own witnesses but to withhold immunity from potential defense witnesses, this can lead to fundamental unfairness because the State has the power to effectively prevent the defense from presenting a contrary or exculpatory version of events to the jury.
This argument has some force in the abstract. Indeed, in State v. Echols, 793 P.2d 1066 (Alaska App. 1990), this Court recognized that the State's refusal to grant immunity to a witness can, in rare instances, constitute an unfair manipulation of the judicial process.
But as we explained in Cogdill, the Echols majority ( i.e., the two members of the court who joined in the concurring opinion) upheld the dismissal of the charges in Echols because (1) the proposed witness's testimony had "crucial exculpatory value" and (2) the prosecutor's office was "inextricably involved in the circumstances that led [the witness] to invoke her privilege not to testify" — in the sense that "the [State] did everything in its power to [obtain the witness's] testimony when it appeared likely [that the testimony would] be favorable [to the State,] and [then did everything in its power] to assure that the testimony would not be heard when it appeared likely [that the testimony would] be unfavorable [to the State]." Cogdill, 101 P.3d at 635, quoting Echols, 793 P.2d at 1077 (concurring opinion of Bryner, C.J., and Singleton, J.).
Washington's case is quite different from the facts of Echols. The proposed defense witnesses were going to testify about drug transactions and drug usage. This testimony obviously posed a danger of subjecting the witnesses to criminal prosecution — and, for this reason, the trial judge appointed independent counsel for these witnesses. After consulting their attorneys, the witnesses chose to invoke their privilege against self-incrimination.
This is not a situation where the witnesses were prompted to invoke their privilege only after the prosecutor's office unexpectedly threatened them with prosecution. Moreover, Judge Collins expressly found that the State's decision to withhold immunity from Washington's proposed witnesses was not motivated by an intent to unfairly manipulate the judicial process.
For these reasons, we conclude that Judge Collins correctly ruled that the State's failure to grant immunity to the proposed defense witnesses was not a proper reason to dismiss the charges against Washington.
Washington's claim that his sentence of 15 years to serve is excessive
As we explained at the beginning of this opinion, Washington was convicted of over one dozen drug offenses. The most serious of these offenses was the unclassified felony of first-degree controlled substance misconduct under AS 11.71.-010(a)(3) — engaging in a "continuing criminal enterprise". The sentencing range for this crime is 5 to 99 years' imprisonment. Judge Collins sentenced Washington to 25 years with 10 years suspended, or 15 years to serve.
AS 12.55.125(b).
For Washington's other offenses — 13 counts of third-degree controlled substance misconduct — Judge Collins imposed wholly concurrent sentences. Thus, Washington's composite sentence ( i.e., his total sentence for all 14 crimes) — was 15 years to serve, with an additional 10 years suspended.
Although 15 years to serve is toward the low end of the 5-to 99-year sentencing range for first-degree controlled substance misconduct, Washington argues that his sentence is excessive, given his "minimal involvement" in the crimes for which he was convicted.
Judge Collins did not believe that Washington's role in these drug offenses was minimal. She viewed Washington's offenses as serious, and she concluded that a significant period of incarceration was needed to satisfy the sentencing goals of community condemnation and deterrence.
In Smith v. State, 745 P.2d 1375 (Alaska App. 1987), this Court noted that sentences of up to 40 years' imprisonment had been upheld for "major suppliers . . . who in effect operate a continuing criminal enterprise". Id. at 1378. However, we also noted that considerably lesser sentences had been upheld for "individuals who deal in [wholesale] amounts . . . but who are first offenders with otherwise exemplary records." Ibid. The facts of Washington's case appear to put him somewhere in between these two categories.
The only Alaska case that addresses the sentence of someone convicted of engaging in a continuing criminal enterprise is Resek v. State, 715 P.2d 1188 (Alaska App. 1986). The facts of Resek are quite similar to the facts of Washington's case. Resek "ran a major drug operation involving the importation of a kilogram of cocaine per week." Id. at 1192. He pleaded no contest to one count of first-degree controlled substance misconduct and 15 counts of third-degree controlled substance misconduct. Id. at 1189. Resek received a composite sentence of 40 years' imprisonment. Id. at 1190.
Like the defendant in Resek, Washington imported large volumes of cocaine into Alaska over a lengthy period of time. However, because Washington has no significant criminal history, his background is substantially better than Resek's, and Judge Collins found that Washington had a good potential for rehabilitation "if [he] can stay away from drugs" — although Judge Collins added, "that's a big 'if'".
Given the record in this case — weighing the gravity of Washington's offenses against his comparatively favorable background for a wholesale drug dealer — we are unable to say that Judge Collins's sentencing decision is clearly mistaken. Accordingly, we uphold Washington's sentence. Conclusion
See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974) (an appellate court is to affirm a sentencing decision unless the decision is clearly mistaken).
The judgement of the superior court is AFFIRMED.