Opinion
Court of Appeals No. A-11325 No. 6329
05-11-2016
EDWIN RONALD PUNGUK, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Peter Kopperud, Assistant Public Advocate, Anchorage (opening brief), William T. Montgomery, Assistant Public Advocate, Bethel (reply brief), and Richard Allen, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee.
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 authority for any proposition of law. Trial Court No. 2NO-10-529 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Second Judicial District, Nome, Ben Esch, Judge. Appearances: Peter Kopperud, Assistant Public Advocate, Anchorage (opening brief), William T. Montgomery, Assistant Public Advocate, Bethel (reply brief), and Richard Allen, Public Advocate, Anchorage, for the Appellant. Ann B. Black, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Craig W. Richards, Attorney General, Juneau, for the Appellee. Before: Mannheimer, Chief Judge, Allard, Judge, and Hanley, District Court Judge. Judge MANNHEIMER.
Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska Constitution and Administrative Rule 24(d).
On January 18, 2010, State Trooper Karl Erickson stopped Edwin Ronald Punguk and his girlfriend Eileen Abruska at the Unalakleet airport. After obtaining Punguk's and Abruska's consent, Trooper Erickson searched their luggage and found approximately 13 ounces of marijuana. Punguk declared that the marijuana belonged solely to him, and not to Abruska. Punguk told Erickson that he had purchased the marijuana in Anchorage, and that he was taking it to the bush to sell it at a mark-up.
Although Punguk intended to sell his marijuana at a mark-up, he assured Erickson that he did not take unfair advantage of his village customers. Punguk declared that he was an "honest" marijuana dealer who gave his customers the full weight he advertised, instead of trying to pass off "village" grams as "real" grams.
Trooper Erickson sent the marijuana to the State Crime Lab for testing. He also contacted Trooper James Sears, who was the drug enforcement trooper for that region. The following day, Trooper Sears conducted a follow-up interview with Punguk by telephone. In this interview, Punguk again claimed that the marijuana was his. He told Sears that he intended to sell the marijuana in the village of St. Michael.
After the State Crime Lab determined that the marijuana was, indeed, marijuana, Punguk was indicted for fourth-degree controlled substance misconduct under AS 11.71.040(a)(2) (possession of one ounce or more of marijuana with intent to distribute).
The State called Trooper Erickson as its main witness at Punguk's trial. Erickson described the events that transpired at the Unalakleet airport, he provided the foundational testimony for the audio recording of his interview with Punguk, and he testified that he sent the seized marijuana to the State Crime Lab for testing. The State also called witnesses from the Crime Lab to testify that the marijuana was, in fact, marijuana. The State did not call Trooper Sears.
During the defense case, both Punguk and Abruska took the stand and testified that Punguk lied to Trooper Erickson at the airport — that Abruska was really the one who purchased the marijuana and intended to sell it, and that Punguk decided to falsely take the blame for this crime to protect Abruska.
The jury found Punguk guilty.
Punguk's claim that he should have been allowed to call Trooper Sears as a defense witness
In this appeal, Punguk claims that the superior court committed error when the court refused to allow Punguk's attorney to subpoena Trooper Sears to testify during the defense case.
Punguk's attorney wished to have Trooper Sears testify about certain events that took place in the days following the discovery of the marijuana. Specifically, the defense attorney wanted Trooper Sears to testify that Punguk, in exchange for a promise of favorable treatment, agreed to help the government's drug enforcement efforts by trying to arrange another purchase of marijuana from his Anchorage supplier. (This purchase would be monitored by the authorities.)
According to the defense attorney's offer of proof, this additional purchase fell through after Punguk was unable to establish contact with his supplier, and the State then took Punguk's case to the grand jury.
The State filed a motion in limine asking the superior court to preclude Punguk's attorney from eliciting this contemplated testimony. The State argued that the proposed testimony was irrelevant to the charge against Punguk. In response, Punguk's attorney told the superior court that Sears's testimony was needed to "complete[] the entire picture of Punguk's case". However, the defense attorney did not offer any explanation as to how this proposed testimony would be relevant to any issue at Punguk's trial.
At the next calendar call, the trial judge gave Punguk's attorney an opportunity to clarify or augment his offer of proof. The judge acknowledged that the proposed testimony might well be relevant at sentencing, but the judge asked the defense attorney to describe how Sears's proposed testimony about the unsuccessful controlled purchase of marijuana would be relevant to Punguk's defense at trial.
In response, Punguk's attorney offered only the nebulous assertion that Punguk's unsuccessful attempt to arrange the marijuana purchase "was a defense [to the charge] in the sense that [it was] favorable testimony and relevant testimony."
After hearing the defense attorney explain his theory of relevancy, the judge granted the State's motion in limine.
In his briefs to this Court, Punguk again asserts that evidence of his unsuccessful attempt to set up a controlled purchase would have been relevant to the issues at his trial. Punguk raises various arguments as to why he should have been able to call Trooper Sears to the stand to testify about the unsuccessful controlled purchase, and how the State then took Punguk's case to the grand jury.
None of Punguk's current theories of relevance were presented to the trial judge; this means that Punguk can not rely on these arguments now. Moreover, Punguk's current theories of relevance have no merit. The testimony that Punguk wanted to present had no relevance to the State's allegations that Punguk possessed one ounce or more of marijuana at the Unalakleet airport, and that he intended to distribute this marijuana. Nor did the proposed testimony have any relevance to Punguk's theory of defense — that the real marijuana dealer was his girlfriend Abruska.
See Jones v. State, 576 P.2d 997, 1000-01 (Alaska 1978); Dyer v. State, 666 P.2d 438, 450-51 (Alaska App. 1983) (a defendant who unsuccessfully offers evidence under one theory of admissibility at trial can not argue a different theory of admissibility on appeal).
As the trial judge noted, Punguk's unsuccessful attempt to make a controlled purchase of marijuana from one of his Anchorage suppliers might be a mitigating factor at sentencing — assuming that the sentencing court viewed the facts in the light most favorable to Punguk (i.e., that Punguk acted in good faith, and that the transaction fell through despite his best efforts). But it had no relevance to the charge for which Punguk was on trial.
Accordingly, we uphold the trial judge's decision on this issue.
Punguk's claim that he was subjected to improper cross-examination when he took the stand at his trial
As we explained earlier, Punguk took the stand at his trial and testified that the marijuana belonged to his girlfriend Abruska — that she was the one who purchased the marijuana and intended to sell it in the bush.
When the prosecutor cross-examined Punguk concerning this version of events, the prosecutor asked Punguk two questions that were apparently based on statements that Punguk made to Trooper Sears when Sears interviewed him by telephone on the day after the marijuana was seized.
Punguk argues that, because this cross-examination was based on statements that he made to Trooper Sears, Sears effectively became a witness against Punguk — and that Punguk was denied his right of confrontation because Sears did not testify at Punguk's trial.
The questions at issue occurred toward the beginning of the prosecutor's cross-examination of Punguk, when the prosecutor asked Punguk to clarify his assertion that Abruska was the one who purchased the marijuana in Anchorage.
In response to the prosecutor's questions, Punguk stated that he and Abruska were in Anchorage during the weekend before they were stopped at the airport. Punguk declared that Abruska purchased the marijuana from "one of her aunt's friends", and that he was with her when she made this purchase.
The prosecutor then asked Punguk whether this purchase occurred in "a trailer park off of Muldoon [Road]". Punguk said yes.
Immediately after Punguk gave this answer, his attorney asked to approach the bench, but the ensuing bench conference was not transcribed. When the bench conference ended, the prosecutor asked one more question about the trailer park being the site of the marijuana purchase:
Prosecutor: So you bought it from that trailer in Muldoon?
Punguk: I didn't buy it.
On appeal, Punguk argues that the factual premise of the prosecutor's questions — i.e., that the marijuana purchase occurred in a trailer park off of Muldoon Road — came from statements that Punguk made to Trooper Sears during their telephonic interview. Punguk contends that it was improper for the prosecutor to ask these questions unless the State made Trooper Sears available as a witness at Punguk's trial.
But Punguk did not deny or dispute the factual assertion underlying the prosecutor's questions. Rather, Punguk endorsed that factual assertion: he agreed that the marijuana purchase took place in a Muldoon trailer park. Indeed, given the way the prosecutor asked these questions and the way Punguk answered them, the jurors would not have been aware that Punguk had earlier made similar statements to Trooper Sears.
These facts distinguish Punguk's case from the situation presented in Loveless v. State, 592 P.2d 1206 (Alaska 1979). In Loveless, the prosecutor asked the defendant a series of incriminatory questions that were explicitly based on the grand jury testimony of a witness, James Evans, who was unavailable for trial. In his questions, the prosecutor expressly identified Evans as the source of the incriminatory information, and the prosecutor repeatedly challenged Loveless to concede that Evans's incriminatory account of events was true — something that Loveless repeatedly denied.
Loveless, 592 P.2d at 1211.
Our supreme court held that "this use of Evans's grand jury testimony violate[d] [Loveless's] right to confront his accusers." The supreme court pointed out that "[i]t was apparent to the jury that the prosecutor's questions were based on the statements [that] Evans [had] given to the grand jury." The court held that the prosecutor's express invocation of Evans's grand jury testimony violated Loveless's right "to cross-examine the witnesses against him so as to test their sincerity, memory, ability to perceive and relate, and the factual basis of their statements", as well as Loveless's right "to demonstrate to the jury the witness' demeanor when [physically] confronted by the defendant".
Ibid.
Id. at 1212.
Id. at 1211-12. --------
But Punguk's case differs in two important ways from the facts of Loveless. First, when the prosecutor cross-examined Punguk, he made no reference to any prior statements of Trooper Sears, nor did the prosecutor apprise the jury that his questions were based on statements that Punguk made to Sears during their telephonic interview. Instead, the prosecutor simply asked Punguk if the marijuana purchase took place in the trailer park. And second, Punguk did not deny the prosecutor's assertion that the purchase took place in the trailer park. Rather, Punguk agreed that this was true.
Under these circumstances, the protections of the confrontation clause were not implicated. There was no need for Punguk's attorney to cross-examine Trooper Sears to test his sincerity, or to test the accuracy of his memory of the telephonic interview, or to explore his potential bias. Nor was there a need for the jury to observe Trooper Sears's demeanor while being questioned in Punguk's physical presence.
For these reasons, we conclude that the prosecutor's questions did not violate the confrontation clause — or, if they arguably did, that any error was harmless beyond a reasonable doubt.
Conclusion
The judgement of the superior court is AFFIRMED.