Opinion
A-13679 0321
04-19-2023
SERENA MICHELLE JOSEPH, Appellant, v. STATE OF ALASKA, Appellee.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant. Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
UNPUBLISHED See Alaska Appellate Rule 214(d)
Appeal from the Superior Court, Trial Court No. 3AN-17-09929 CR Third Judicial District, Anchorage, Gregory Miller, Judge.
Michael Horowitz, Law Office of Michael Horowitz, Kingsley, Michigan, under contract with the Office of Public Advocacy, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Treg R. Taylor, Attorney General, Juneau, for the Appellee.
Before: Wollenberg, Harbison, and Terrell, Judges.
SUMMARY DISPOSITION
Following a jury trial, Serena Michelle Joseph was convicted of one count of third-degree weapons misconduct (for being a felon in possession of a concealable firearm) and one count of fifth-degree weapons misconduct (for failing to immediately disclose to the police her possession of a deadly weapon concealed on her person) based on the discovery of a handgun in the pocket of the jacket she was wearing, after the police asked her to exit her vehicle. Joseph raises two issues on appeal.
AS 11.61.200(a)(1) and AS 11.61.220(a)(1)(A), respectively.
First, Joseph argues that evidence of the gun should have been suppressed because the officers lacked "reasonable suspicion that imminent public danger exist[ed] or serious harm to persons or property ha[d] recently occurred," as required by Coleman v. State, when they asked her to exit her vehicle. We disagree. The police contacted Joseph at approximately 3:30 a.m. after a man called 911 and reported a suspicious woman sitting in a vehicle in his neighbor's driveway. The man explained that the neighbor's house was for sale, that he had seen no movement in the house, that the lights were off, and that the car had been parked and running in the driveway for approximately twelve hours. When the man checked on the woman approximately four hours earlier, she stated that her mother owned the house and that she was helping her mother move belongings into a trailer located on the property, but the woman's statements did not match the man's observations.
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976). Joseph does not identify in her brief when the police encounter turned into a Fourth Amendment seizure. But we have reviewed the record, and we conclude that the earliest point at which the encounter ripened into a seizure was when the police asked Joseph to exit the vehicle. See Adams v. State, 103 P.3d 908, 910 (Alaska App. 2004) ("A police officer can approach a private citizen and direct questions to that person without turning the encounter into an investigative stop."); see also Meyer v. State, 368 P.3d 613, 615 (Alaska App. 2016) (holding that the question of whether a seizure occurred, based on the facts found by the trial court, is a legal question reviewed by this Court de novo).
The police responded to the 911 call and discovered Joseph asleep in the vehicle, with a methamphetamine pipe resting in the center console. The officers woke Joseph and asked her what she was doing, and she again claimed that she was moving belongings into a trailer on the property. When the police asked Joseph about the owner of the vehicle, she provided a name, but dispatch informed the officers that the vehicle was not registered under that name. The officers also observed Joseph fidgeting and repeatedly sticking her hands in her pockets, where the police saw she had a knife. At this point, the officers asked Joseph to exit the vehicle.
Given these facts, we conclude that it was reasonable for the police officers to investigate further, and that the Coleman test was satisfied.
4 Wayne R. LaFave, Search and Seizure § 9.5(c), at 695 (6th ed. 2020) ("[W]here the facts reasonably 'suggest[] several possible forms of criminal activity,' it is proper for the reviewing court 'to consider all such forms.'" (quoting Diehl v. Munro, 170 F.Supp.2d 311, 318 n.5 (N.D.N.Y. 2001))).
Second, Joseph argues that the superior court erred when it denied her motion to bifurcate at trial the question of whether she possessed a gun from the question of whether she had previously been convicted of a felony. We addressed a closely related issue in State v. McLaughlin, holding that when a defendant is charged with being a felon in possession of a firearm, the defendant cannot unilaterally concede that they are a felon in order to prevent the jury from learning that fact. We explained that because possession of a firearm is not usually a crime, there is a serious risk that a jury will refuse to convict (i.e., nullify) if it does not understand why the defendant was prohibited from possessing a weapon.
State v. McLaughlin, 860 P.2d 1270, 1277-78 (Alaska App. 1993).
Joseph assertsthat McLaughlin isnotcontrollingbecause McLaughlin only rejected a defendant's attempt to make a unilateral concession, not a request for bifurcation. But the similarities between a concession and bifurcation in this context are so apparent that in a concurring opinion, a judge of this Court once characterized McLaughlin as "reject[ing] bifurcation." In light of McLaughlin, we conclude that the superior court did not abuse its discretion when it refused to bifurcate the question of whether Joseph was a felon from the question of whether she possessed a gun. But we are careful to note, as we did in McLaughlin, that our reasoning is limited to circumstances in which "the charged offense consists of conduct that is ordinarily lawful, which is rendered unlawful only because of the defendant's prior conviction of a felony."
Ostlund v. State, 51 P.3d 938, 944 (Alaska App. 2002) (Mannheimer, J., concurring).
McLaughlin, 860 P.2d at 1278 n.15.
The judgment of the superior court is AFFIRMED.