Opinion
Court of Appeals No. A-9628.
September 24, 2008.
Appeal from the Superior Court, First Judicial District, Ketchikan, Trevor N. Stephens, Judge, Trial Court No. 1KE-05-1114 CR.
Daniel Lowery, Assistant Public Defender, and Q uinlan Steiner, Public Defender, Anchorage, for the A ppellant. Timothy W. Terrell, 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 Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Terri L. Bermudez was convicted of misconduct involving a controlled substance in the third degree, a class B felony. Superior Court Judge Trevor N. Stephens sentenced Bermudez to 3 years of imprisonment with 2 years suspended.
AS 11.71.030(a)(1), (c).
On appeal, Bermudez argues that Judge Stephens erred in allowing Detective Andrew Berntson to testify about a statement a police informant, Richard Cisco, made to him that Bermudez had offered to sell Cisco methamphetamine. Bermudez argued that Cisco's statement was inadmissible hearsay and was prejudicial. But Judge Stephens allowed the statement into evidence on the ground that it was admissible as non-hearsay to show the course of the police investigation. Judge Stephens concluded that admitting evidence of the statement was not unfairly prejudicial. We affirm Judge Stephens's decision.
Bermudez also argues that Judge Stephens erred in refusing to consider giving Bermudez a suspended imposition of sentence. But the record shows that Judge Stephens considered giving Bermudez a suspended imposition of sentence but rejected that alternative.
Why we uphold Judge Stephens's decision to admit Richard Cisco's statement as non-hearsay
Richard Cisco was a paid police informant. The police paid for his apartment, paid for his cellular telephone, and paid him $100 per week. In exchange, Cisco was to arrange police-monitored drug purchases.
Cisco testified that he bought methamphetamine from Bermudez on two occasions. The first drug buy occurred on April 28, 2005. Cisco testified that Bermudez knocked on his door and asked him if he knew anyone who would be interested in one gram of methamphetamine. Cisco testified that he contacted Detective Berntson and another trooper and arranged to get buy money from them. The troopers met with Cisco, strip searched him, and gave him some money. Cisco testified that he gave Bermudez the money and then went back to his apartment to wait because Bermudez had to go somewhere outside the building to get the drugs. Cisco's testimony indicated that Bermudez delivered the drugs to him in his apartment. For this first buy, Cisco testified that he did not wear a wire and therefore his interaction with Bermudez was not recorded. The jury acquitted Bermudez of this charge.
Cisco testified that in May of 2005, Bermudez again asked him if he knew anyone who wanted to buy drugs. He again contacted Detective Berntson and met with Berntson to receive the buy money. On this occasion, Cisco wore a wire and the transaction was recorded. He testified that he went to Bermudez's apartment to get the drugs. But Bermudez had to leave the building and travel somewhere in a taxicab to get them. Cisco went back to his apartment and waited for Bermudez's telephone call. When Bermudez called to tell him that the methamphetamine was available, Cisco went to her apartment and got the drugs from her. The jury ultimately convicted Bermudez on this charge.
Detective Berntson then testified. He stated that he was the primary officer for the Bermudez investigation and had worked with Cisco. The prosecutor asked Berntson whether Cisco had contacted him about Bermudez and asked what Cisco had told him. The defense objected on the ground that Berntson's testimony ab out what Cisco said was hearsay. But the prosecutor asserted that she was not offering Berntson's testimony about what Cisco said to prove the truth of Cisco's statement, but rather to illustrate the course of the police investigation. Bermudez also objected on the ground of Alaska Rule of Evidence 403 — she argued that the probative value of the evidence was outweighed by the danger of unfair prejudice.
Judge Stephens overruled the hearsay objection, finding that Berntson's testimony about what Cisco said was admissible to show the course of the police investigation. He also concluded that the evidence was not unduly prejudicial. He gave the jury a limiting instruction:
What Mr. Cisco may have told . . . Detective Berntson is not being admitted for the truth of what he told him, it's being admitted to explain why Detective Berntson may have done what he did next. And so it's not to be considered by you as evidence of the truth of what Mr. Cisco may have told him.
Berntson then testified that on A pril 28, 2005, Cisco told him that Bermudez had offered to sell him a baggie of methamphetamine for $100.
When Berntson testified about being contacted by Cisco prior to the May 10 transaction, Bermudez made the same objection and the court made essentially the same ruling.
Alaska Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." A statement is not hearsay if it is not offered to prove the truth of the matter asserted. Judge Stephens did not abuse his discretion in determining that Detective Berntson's testimony about what Cisco told him was admissible to show the course of the police investigation. Judge Stephens could also conclude that this testimony was not unduly prejudicial.
See 2 Kenneth S. Broun et al., McCormick on Evidence § 246, at 129 (6th ed. 2006).
First, the judge gave the jury a limiting instruction that told the jury how the testimony could be used. And, as Judge Stephens pointed out, Cisco had already told the jury that he telephoned Berntson after Bermudez offered to sell him drugs. Therefore, the main justification for excluding hearsay — the inability to cross-examine the declarant — is not present in this case. We believe these circumstances made clear to the jury that Cisco's statement to Berntson that Bermudez had contacted him to find out if he wanted to buy drugs was offered only to explain the course of the police investigation. Cisco was a paid police informant. The jury could evaluate Cisco's credibility based on his own testimony and the evidence that corroborated his testimony. The jury apparently required the State to corroborate Cisco's testimony, because it acquitted Bermudez on the drug sale that was not recorded.
See id. § 245, at 126 ("The lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is reported is today accepted as the main justification for the exclusion of hearsay.").
Judge Stephens considered giving Bermudez a suspended imposition of sentence
Judge Stephens sentenced Bermudez to 3 years of imprisonment with 2 years suspended. Bermudez argues on appeal that Judge Stephens erred in refusing to consider a suspended imposition of sentence.
Alaska Statute 12.55.085(a) gives a sentencing judge the discretion to suspend imposition of sentence in certain circumstances. The Alaska Supreme Court held in Nattrass v. State that the decision whether to suspend imposition of sentence is left to the discretion of the sentencing court. The court also indicated, however, "that in the circumstances of youthful first offenders, who have committed nonviolent crimes, serious consideration should be given by Alaska'[s] trial courts to the sentencing alternative offered by AS 12.55.085(a)." In at least one instance, the supreme court concluded that when a youthful offender is convicted of a nonviolent offense, and the offense is a single isolated transaction not likely to recur, a suspended imposition of sentence may be mandatory.
554 P.2d 399 (Alaska 1976).
Id. at 401.
Id. (footnote omitted).
Wharton v. State, 590 P.2d 427, 431 (Alaska 1979).
There is no dispute that Bermudez was convicted of a nonviolent felony and that the offense was her first felony conviction. Bermudez was convicted of one count of third-degree misconduct involving a controlled substance, a class B felony. Judge Stephens found one mitigating factor — AS 12.55.155(d)(13) — that the offense involved small quantities of a controlled substance. Under AS 12.55.125(d)(1), Bermudez's presumptive range was 1 to 3 years of imprisonment. As a result of the mitigating factor, the sentencing court was authorized to impose a sentence below the presumptive range set out in AS 12.55.125. Judge Stephens sentenced Bermudez to 3 years of imprisonment with 2 years suspended — 1 year to serve.
AS 11.71.030(a)(1), (c).
AS 12.55.155(d).
The record shows that Judge Stephens carefully considered whether to impose a suspended imposition of sentence. But he pointed out that Bermudez was not a youthful offender, she was thirty-six years old at the time of sentencing. He noted her extensive prior criminal record — nineteen prior convictions from 1988 to 2005. He concluded that Bermudez had "not been deterred by suspended jail time, [and had not] benefitted in the greater scheme of things from past attempts at rehabilitation." It is clear from Judge Stephens's sentencing remarks that he carefully considered Bermudez's argument for a suspended imposition of sentence and rejected it.
The judgment of the superior court is AFFIRMED.
On the issue of whether the police officer should have been allowed to describe his telephone conversation with the informant, I disagree with my colleagues. I believe that the trial court's ruling was wrong — but I also conclude that this error was harmless.
As explained in the lead opinion, the trial judge allowed a police officer to testify concerning the details of a conversation that the officer had with the informant, Cisco — a conversation in which (according to the officer) Cisco stated that Bermudez had offered to sell him a baggie of methamphetamine for $100.00.
The trial judge concluded that this testimony was not hearsay because it was not being offered to prove the truth of the informant's accusation, but rather to prove the officer's reasons for setting up a controlled drug purchase. It is true that the challenged evidence was relevant to explaining the officer's subsequent conduct. But the problem here is the scope of the officer's testimony. The details of the conversation described by the officer exceeded the amount of detail needed to explain the ensuing course of the investigation.
The Alaska Supreme Court addressed this issue in Avery v. State, 514 P.2d 637 (Alaska 1973). In Avery, the supreme court adopted the rule that, in this situation, the police officer's testimony should normally be confined to the fact that the officer's investigative efforts were prompted by information received from the informant — and that a trial judge should normally employ Evidence Rule 403 to bar the officer from repeating the details of the informant's tip (presumably, unless an understanding of a particular detail is necessary for an understanding of a particular investigative effort). Avery, 514 P.2d at 644-45.
The facts of Bermudez's case raise the same problem presented in Avery. It is true that the informant, Cisco, took the stand at Bermudez's trial — but his testimony regarding his conversation with Bermudez was significantly more circumscribed than the testimony later offered by the police officer. When Cisco described this conversation, he stated merely that Bermudez knocked on his door one night and asked him if he knew anyone who might be interested in purchasing a gram of methamphetamine that was available. Cisco did not assert that Bermudez was, herself, the supplier of the drug, nor did Cisco assert that Bermudez named a sales price of $100.00. These extra details were contained solely in the officer's description of Cisco's subsequent telephone tip to the police.
Avery holds that, in these circumstances, the officer should not be allowed to testify about these details — that the officer's testimony should be limited under Evidence Rule 403.
In her brief to this Court, Bermudez expressly relies on the supreme court's decision in Avery to support her contention that she had a valid objection to the officer's testimony. My colleagues brush this argument aside and uphold the trial judge's decision without even mentioning Avery — much less attempting to explain why they might believe that Bermudez has misconstrued Avery, or why they believe that Bermudez's case is materially different from the facts of Avery.
I assume that my colleagues have some good reason for concluding that Avery has so little importance to the decision of this case that it is not worth mentioning. But even so, my colleagues still have an obligation to discuss Avery and explain themselves to Bermudez — because Bermudez expressly relies on Avery as the legal basis for her claim of error.
Although I conclude that the trial judge committed error when he allowed the officer to testify about the above-described details of his conversation with Cisco, I further conclude that this error does not require reversal of Bermudez's conviction. In Avery, the supreme court held that this type of error is governed by the Love test: the error will require reversal of a criminal conviction only if the error appreciably affected the jury's verdict. Avery, 514 P.2d at 645.
Here, the trial judge instructed the jurors that the officer's description of the conversation was not offered for the truth of the matter asserted. Even assuming that this instruction, alone, was insufficient to cure the error, there is the additional fact that the jury (even after hearing this evidence) acquitted Bermudez of the initial drug sale (the sale that was not recorded). The jury's verdict demonstrates that they were not swayed by the improper aspects of the officer's testimony.
For these reasons, I conclude that even though it was error to let the officer describe details of his conversation with Cisco that significantly exceeded Cisco's own description of his interaction with Bermudez, this error does not require reversal of Bermudez's conviction.