Opinion
Court of Appeals No. A-10837 Trial Court No. 2BA-09-239 CR No. 5910
01-09-2013
JORGE T. MORENO, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, 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
Appeal from the Superior Court, Second Judicial District, Barrow, Michael I. Jeffery, Judge.
Appearances: Callie Patton Kim, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
BOLGER, Judge.
Jorge T. Moreno was charged with delivery of methamphetamine, possession of methamphetamine, and illegal sale of alcohol in a local option community. During his trial, Moreno's defense counsel asked an investigating officer whether the police had been able to determine who owned a jacket that contained a methamphetamine pipe, and the officer replied that Moreno had refused to speak to the police about the matter. We conclude that defense counsel's question elicited the officer's testimony, and that counsel apparently made a tactical decision not to object to the officer's answer. We also conclude that there was sufficient evidence of Moreno's possession of the pipe to uphold his conviction for possession of methamphetamine. And we conclude that the lack of a jury instruction on "informer testimony" did not constitute plain error.
Background
Police officers in Barrow received a tip from a paid confidential informant that Jorge Moreno was selling methamphetamine and liquor out of his home, and so they had the informant arrange a transaction at Moreno's house. Before the informant entered the house, officers searched him for contraband, then gave him $400 to make a purchase. An officer waited in a taxi cab outside Moreno's house and observed the informant until he entered the arctic entry. When the informant returned, he did not have the $400 he had been given, but he did have a slip of methamphetamine and two jugs of whiskey. The informant was later paid $1,000 for the controlled buy, $500 for testifying before the grand jury, and $500 for testifying at trial.
Based on this information, the officers obtained a warrant to search Moreno's home for methamphetamine and alcohol. When they arrived at Moreno's house to execute the warrant, one officer saw Moreno running toward the back of the house. Inside the house, an officer found Moreno in the bathroom with the water running; Moreno said that he was trying to fix a plumbing problem.
In Moreno's bedroom, the officers found several slips of methamphetamine on a shelf near the bed. The officers also found several glass pipes in men's jackets in the same bedroom, and one of the pipes contained methamphetamine residue. The officers asked Moreno whether the brown jacket containing the pipe belonged to him, but he refused to answer.
During Moreno's trial, his attorney asked Sergeant Sundai, one of the officers who conducted the search, about his investigation of the ownership of the brown jacket:
Defense Attorney: Okay. And so when you collected this pipe that you made reference to, you refer to it as coming out of a brown jacket?The defense attorney did not object to Sergeant Sundai's testimony or ask the trial judge for relief of any kind.
Sergeant Sundai: Correct.
Defense Attorney: Okay. And at no point during your investigation did you determine who that jacket belonged to?
Sergeant Sundai: Correct, ma'am. There [were] no identifying items [in the jacket] and the defendant refused to speak to us about it, but we did photograph where that - that came out of ...
Defense Attorney: Yes or no?
Sergeant Sundai: ... which jacket.
Defense Attorney: You didn't find out, right?
Sergeant Sundai: Correct.
With respect to the charges for the delivery of methamphetamine and liquor, the only testimony at trial identifying Moreno as the person who sold the prohibited items came from the informant. Moreno did not request a jury instruction that the testimony of an informer should be viewed with special care, and the judge did not give one. But Moreno's attorney was able to cross-examine the informant on the benefits he had received for his part in the case, and she argued to the jury that the informant's testimony should not be believed.
Moreno was convicted of all three charges.
Discussion
Defense counsel's question about the jacket elicited the officer's testimony, and counsel apparently made a tactical decision not to object.
Moreno first argues that Sergeant Sundai's testimony was improper because he referred to Moreno's refusal to speak about the jacket, and that the trial court erred by failing to strike Sergeant Sundai's testimony and give the jury a curative instruction. Evidence of a defendant's post-arrest silence in response to police questioning is generally inadmissible under Article I, section 9 of the Alaska Constitution. In addition, a defendant's pre-arrest silence will usually be inadmissible under Alaska Evidence Rule 403 because its probative value is inherently low and the danger of unfair prejudice is inherently high. In this case, it is unclear whether Moreno had been arrested at the time when he was questioned about the jacket, but it seems reasonably certain that he had been detained while the officers executed the search warrant.
Adams v. State, 261 P.3d 758, 765 (Alaska 2011).
Id.
Moreno did not make any objection to Sergeant Sundai's testimony at trial, so now he must show plain error. For a reviewing court to find plain error,
(1) there must be error, and the error must not have been the result of an intelligent waiver or a tactical decision not to object; (2) the error must be obvious, meaning that it should have been apparent to any competent judge or lawyer; (3) the error must affect substantial rights, meaning that it must pertain to the fundamental fairness of the proceeding; and (4) the error must be prejudicial.
Id. at 773.
In this case, we assume that the admission of Sundai's comment on Moreno's silence was an obvious error that affected Moreno's substantial rights. But the State argues that we should not find plain error because the defense attorney elicited this testimony about Moreno's silence, and because she did so for a tactical reason: "to impeach the police investigation and to lay a foundation for arguing that the state had not proved that Moreno knowingly possessed the pipe." According to the State, Sergeant Sundai's statement regarding Moreno's silence was made in direct reply to defense counsel's question of "whether Sundai had made any effort to determine who the jacket containing the pipe belonged to." And the State asserts that the defense attorney took advantage of this testimony in her closing argument, when she argued that the pipe was found in "one of the jackets that no one identified as being theirs."
We agree that Sergeant Sundai reasonably could have understood the defense attorney to be asking whether the police had conducted an adequate investigation into the ownership of the jacket. If Sundai interpreted the question in this way, his response would arguably have been responsive to the question — because the police had investigated the ownership of the jacket by asking Moreno about it.
Moreover, when Sergeant Sundai commented on Moreno's silence, the defense attorney quickly directed him to give a yes or no answer to her question. This indicated that the defense attorney perceived that Sergeant Sundai had made an inadmissable comment. It could also indicate that the defense attorney chose not to object, so that at least one colorable issue would be available on appeal. It could also indicate that the defense attorney decided not to object because an objection could have focused the jury's attention on Moreno's silence. In any case, it appears that the defense attorney recognized the inadmissability of this testimony and made a tactical decision not to object and not to request a cautionary instruction or a mistrial.
It also appears that this error may have been harmless. In Adams v. State, the supreme court discussed four factors a court should consider when determining whether a reference to the defendant's silence may constitute harmless error: (1) whether the conviction depended primarily on resolution of conflicting witness testimony; (2) whether any comments on the defendant's silence were made during the prosecutor's closing argument; (3) whether the reference was "express" rather than "brief and passing"; and (4) whether the evidence was "directly elicited by the prosecutor's questioning."
Id. at 774 - 75.
Here, there was conflicting testimony about whether Moreno had possession of the pipe with methamphetamine residue. The jury heard evidence that the pipe was found in a jacket in the bedroom that Moreno shared with his wife and that a paid confidential informant had purchased methamphetamine from Moreno the day before. But the jury also heard evidence suggesting that many people visiting Moreno's residence left their coats in his bedroom.
The other three factors suggest that this testimony had little impact on Moreno's trial. The prosecutor did not elicit the testimony about Moreno's silence, the prosecutor did not mention Moreno's silence during closing argument (or at any other time), and the comment on Moreno's silence was brief and passing. Considering all of these factors, we conclude that the admission of Sundai's testimony was harmless beyond a reasonable doubt.
The State presented sufficient evidence of Moreno's possession of methamphetamine to uphold his conviction.
Moreno argues that the State presented insufficient circumstantial evidence to properly convict him of knowing possession of methamphetamine. When we review this type of claim, we "consider only those facts in the record most favorable to the prosecution and such reasonable inferences as a jury may have drawn from them." We then inquire "whether reasonable jurors could conclude that the accused's guilt was established beyond a reasonable doubt."
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (quotation omitted).
Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
The State was required to prove that Moreno knowingly possessed the pipe containing methamphetamine residue. Knowing possession cannot be proven solely by the defendant's "proximity to contraband." But proximity to contraband can be "combined with other circumstantial evidence to support an inference of knowing possession."
See AS 11.71.040(a)(3)(A); AS 11.71.150(e)(2); AS 11.81.610(b)(1) (when a statute defining a criminal offense contains no culpable mental state, the State must prove that the defendant knowingly engaged in proscribed conduct).
Marion v. State, 806 P.2d 857, 859 (Alaska App. 1991).
Id.
Here, a pipe with methamphetamine residue was found in a jacket taken from Moreno's bedroom. When the police executed the search warrant, an officer saw Moreno run toward the back of the residence. This evidence suggested that Moreno knew he had contraband in his home and wanted to get rid of it before the search began. Another officer testified that he found several methamphetamine slips on a shelf near the bed in the defendant's bedroom. And the jury heard testimony that Moreno had sold methamphetamine to a confidential informant the day before. Taken together, this evidence could convince a reasonable juror that Moreno had knowing possession of the methamphetamine residue found in the pipe.
The lack of a jury instruction on "informer testimony" did not constitute plain error.
Moreno also argues that the trial judge erred by failing to give an "informer testimony" instruction to the jury — an instruction that the jury should examine the testimony of an informer with special care. But Moreno's attorney did not request any special instruction on "informer testimony" at trial. Ordinarily, an appellant may not rely on an omission from the jury instructions unless he or she makes a specific objection before the jury retires to deliberate. In the absence of such an objection, the appellant must show plain error.
Khan v. State, 278 P.3d 893, 900 (Alaska 2012).
When the State relies on informer testimony, the jury should be instructed that "[t]he testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness." But the failure to give such an instruction may be harmless error where the defendant has "ample opportunity" to cross-examine a paid informant about any bias, prejudice, or interest, and the jury is given a standard instruction to take these witness credibility issues into account. It follows that, under these circumstances, the failure to give such an instruction is not plain error.
Fresneda v. State, 483 P.2d 1011, 1015 (Alaska 1971) (quotation omitted).
Evans v. State, 574 P.2d 24, 25 (Alaska 1978) (per curiam).
Robinson v. State, 593 P.2d 621, 624 (Alaska 1979).
In this case, Moreno's attorney had "ample opportunity" to cross-examine the paid informant about any bias, prejudice, or interest, and she did cross-examine the informant on those topics. The jurors were also given an instruction advising them to consider a witness's bias, prejudice, or interest when they evaluated the witness's credibility. Additionally, Moreno's attorney argued in her closing argument that the jury should disbelieve the informant's testimony based on the obvious benefits he had received for his work.
See Evans, 574 P.2d at 25.
Moreno argues that due process requires a jury to be given an "informer testimony" instruction whenever an informer's testimony is the sole basis for the defendant's conviction. But the two cases Moreno relies upon are both distinguishable: In both cases, multiple defendants were tried jointly, but the prosecution failed to present any evidence of wrongdoing by one of the joined codefendants aside from an informant's testimony. In such a case, evidence of the guilt of one defendant could be unfairly attributed to another defendant. But Moreno's trial did not suffer from these potentially unfair circumstances, nor was the informer's testimony the sole basis for his conviction.
See United States v. Garcia, 528 F.2d 580, 582, 587-88 (5th Cir. 1976); United States v. Griffin, 382 F.2d 823, 825, 829 (6th Cir. 1967).
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Moreno's claim of plain error fails because Moreno cannot show a reasonable probability that the error affected the outcome of his trial.
Conclusion
We AFFIRM the superior court's judgment.