Opinion
Court of Appeals Nos. A-9585 A-9586.
May 5, 2010.
Appeal from the Superior Court, First Judicial District, Juneau, Larry Weeks, Judge, Trial Court Nos. 1JU-04-1712 CR 1JU-05-645 CR.
Averil Lerman and Glenda Kerry, Assistant Public Advocates, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant.
Terisia K. Chleborad, 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 Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
David Ripley was convicted of three counts of third-degree misconduct involving a controlled substance. These convictions were based on three separate sales of cocaine by Ripley to informant Dominique Jean that were electronically monitored and recorded by police. Ripley was separately convicted of two counts of perjury and one count of solicitation of witness tampering. These convictions were based on threats that Ripley made to Jean — through his friend, Marshall Harris — which Ripley falsely denied under oath.
Ripley makes several appellate arguments. Ripley argues that the indictment in his drug case should have been dismissed because the State failed to show that the substance Ripley sold was in fact cocaine. Ripley argues that the trial court abused its discretion by not granting his motion for additional discovery on witness Jean. We conclude that Ripley has forfeited both of these arguments because he failed to request a ruling from the trial court.
Ripley argues that the trial court abused its discretion by not granting a fourth continuance after Jean left the state. Ripley also argues that the trial court abused its discretion by allowing rebuttal testimony of threats made against witness Jean. We conclude that these decisions were not clearly unreasonable.
Ripley argues the telephone calls he made from the Lemon Creek Correctional Facility were illegally recorded and should have been suppressed. Ripley also argues that there was insufficient probable cause for the Glass warrant because the warrant was based on the hearsay statements of informants whose credibility had not been established. Ripley also argues that it was plain error to admit evidence obtained through the Glass warrant because such warrants violate federal and state wiretapping statutes. We conclude that Ripley's arguments on these issues are wrong as a matter of law.
Finally, Ripley appeals his composite sentence, but we conclude that the sentence was not clearly mistaken.
Background
Dominique Jean contacted the Juneau Police Department and offered to serve as an undercover informant. On August 25, 2004, Officer Dominic Branson met with Jean, and Jean reported that he had purchased cocaine from Ripley about a month earlier. Branson knew Jean from prior contacts: Jean had an extensive criminal history, had used cocaine, and suffered from schizophrenia.
On August 19, Branson observed another informant make a controlled buy of cocaine from Ripley. Based on these observations and Jean's assertion that he had bought cocaine from Ripley, Branson obtained a Glass w arrant to record controlled buys of cocaine from Ripley by Jean.
Branson monitored and recorded three controlled buys of cocaine between Jean and Ripley on August 27 and 28. A grand jury indicted Ripley for three counts of third-degree misconduct involving a controlled substance.
While awaiting trial at the Lemon Creek Correctional Facility, Ripley made about twenty telephone calls to Marshall Harris. Ripley told Harris that Ripley stood a good chance of being acquitted if Jean did not testify. He also said that Harris should tell Jean that Ripley was angry, that Ripley would find Jean after he got out of jail, and that Jean should leave town and not appear at trial. The calls were recorded.
Ripley testified at a bail hearing in the drug case on March 17, 2005. During cross-examination by the State, Ripley testified that he did not make telephone calls to Harris asking him to talk to Jean, that he never suggested Jean leave town, that he never suggested Jean should not testify at his trial, and that he never threatened anyone. A grand jury compared Ripley's testimony with the taped telephone calls, and indicted Ripley for five counts of perjury and one count of solicitation of tampering with a witness in the first degree.
Both cases were assigned to Superior Court Judge Larry Weeks. In the drug case, a jury convicted Ripley of three counts of third-degree misconduct involving a controlled substance. In the perjury case, a jury convicted Ripley of two counts of perjury and one count of solicitation of witness tampering.
AS 11.71.030(a)(1).
AS 11.56.200.
AS 11.56.540(a)(2).
On January 11, 2006, Judge Weeks sentenced Ripley on both the perjury and drug convictions. Ripley received a composite sentence of 13 years with 1 year suspended. Ripley now appeals.
Was there probable cause to support the Glass warrant?
Branson's affidavit explained that Dominique Jean had contacted the Juneau Police Department and offered to work undercover. Branson met with Jean and told him that he would be given consideration based on his performance. Jean said that he had purchased cocaine from Ripley about a month prior to the meeting, and that Ripley told him to call for more any time.
Officer Branson's affidavit also contained information based on Branson's observations of a controlled buy of cocaine from Ripley made by another informant, designated as JCU 04-025. JCU was given funds to purchase cocaine from Ripley, and officers observed JCU as she met Ripley outside of an apartment building. Ripley made a telephone call, went into the apartment building, and then returned a few minutes later with a bag of cocaine.
Based on Branson's affidavit, the local magistrate issued a warrant to record Jean's conversations with Ripley.
Ripley argues here that the search warrant application failed to establish Jean's credibility. Specifically, Ripley argues that Jean's statements against his penal interest were insufficient to establish his credibility and that the information obtained from JCU's controlled buy failed to corroborate Jean's information.
If Jean's hearsay statements were necessary to establish probable cause for the G lass w arrant, then the w arrant application needed to establish Jean's person al knowledge and credibility. To corroborate Jean's claim that he could buy cocaine from Ripley, Officer Branson needed to provide information that "relat[ed] to the tip in some way that lends credibility to the report of illegality." And Branson did just that: he swore to statements in his affidavit in which he detailed his observations of Ripley selling cocaine to another informant. Jean claimed that he had purchased cocaine from Ripley, and Branson corroborated that claim when he monitored Ripley selling cocaine to the other informant.
See Wilson v. State, 82 P.3d 783, 785 (Alaska App. 2003) ("[W]hen the State applies for a search warrant and bases its application on hearsay, the State must establish (1) that each of its hearsay informants is generally a credible source of information, and (2) that each informant obtained their present information in a reliable way.").
Carter v. State, 910 P.2d 619, 624 (Alaska App. 1996).
See, e.g., People v. Green, 117 Cal. App. 3d 199, 205-06 (Cal. App. 1981) (holding that evidence of drug sales to others corroborated the reliability of an informant who also purchased drugs from the same suspect); State v. Siegfried, 274 N.W.2d 113 (Minn. 1978).
Moreover, it is not clear that Branson's warrant application required Jean's statements to establish probable cause. The warrant application included Branson's observations of a controlled buy of cocaine from Ripley by informant JCU that occurred five days before Branson applied for the Glass warrant. Accordingly, Branson's independent observations established probable cause to believe that Ripley was engaged in the sale of cocaine and that another informant could discuss the purchase of cocaine with Ripley.
In summary, Officer Branson's observation of Ripley's sale of cocaine to JCU independently corroborated Jean's claim that he could buy cocaine from Ripley. Branson's observations also established probable cause to believe that Ripley had cocaine in his possession for sale and that Jean could talk to Ripley about such a purchase.
Did the Glass warrant violate state and federal eavesdropping statutes?
Ripley argues that the recordings made during the controlled drug buys were contrary to the Alaska and United States wiretapping statutes. Ripley acknowledges that this argument was not presented to the trial court and argues that the admission of the recordings amounted to plain error. This means that Ripley must now show that the error was so obvious as to be apparent to any competent judge or attorney.
Allen v. State, 51 P.3d 949, 958 (Alaska App. 2002).
This court has previously analyzed the legislative history of the wiretapping statutes and concluded that it is permissible to record otherwise private conversations when the recordings are made pursuant to a warrant. Ripley argues that these cases were wrongly decided. But a competent judge would have been required to follow this precedent, even if it was later determined to be incorrect. Ripley has thus failed to establish plain error.
Bachlet v. State, 941 P.2d 200, 208 (Alaska App. 1997); Coffman v. State, Memorandum Opinion and Judgment No. 4541 (Alaska App., Mar. 6, 2002), 2002 WL 341988 at *3.
The Motions for Dismissal and Discovery
Ripley argues that the trial court erred in denying his motion to dismiss the indictment because there was insufficient evidence presented to the grand jury to establish that the substance Ripley sold to the confidential informant was cocaine. Ripley argues that the trial judge denied his motion in an order issued on September 23, 2005. But this order clearly relates to Ripley's telephone calls from jail, an issue that we discuss separately below.
To preserve an issue for appeal, an appellant must raise the issue and obtain a ruling from the trial court. Ripley has waived his argument about the sufficiency of the evidence to support the indictment by his failure to demand a ruling below.
Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002).
Ripley also makes an argument about his motion to compel discovery of mental health records pertaining to witness Dominique Jean. In the trial court, the State did not oppose an in camera review of the records by the judge. However, the trial court never issued a ruling on Ripley's motion. Accordingly, Ripley has also waived this issue by his failure to demand a ruling from the trial court.
Ripley's Telephone Conversations From Jail
Ripley filed a motion to suppress telephone conversations recorded while he was awaiting trial at the Lemon Creek Correctional Center. Ripley had called Marshall Harris about twenty times, threatening Jean and suggesting that Harris should tell Jean to leave town. In his motion, Ripley argued that these recordings should be suppressed because recording the calls was contrary to the Department of Corrections (DOC) policy manual, which specified that "calls of prisoners other than those who have been convicted of a crime may only be monitored and recorded when authorized by court order." Judge Weeks denied the motion, ruling that (1) Ripley had no reasonable expectation of privacy in the telephone conversations because visual and audio notices informed him that the calls were being monitored, and (2) DOC's violation of its manual did not warrant suppression.
After the parties had submitted their briefs in this appeal, this Court addressed and rejected a nearly identical argument in State v. Avery. This court held that prisoners do not have a reasonable expectation of privacy in the telephone calls they make from prison. We also held that a violation of a correctional facility policy did not justify application of the exclusionary rule because the violation did not involve the violation of a statute and because the policy was not widely known.
211 P.3d 1154 (Alaska App. 2009).
Id. at 1157-58.
Id. at 1159 (discussing Berumen v. State, 182 P.3d 635 (Alaska App. 2008)).
Thus, this court has previously rejected the arguments Ripley now presents. Recording Ripley's telephone conversations did not violate his rights under the Alaska or United States Constitutions because Ripley did not have a reasonable expectation of privacy in the conversations. To the extent that the recordings were made in violation of DOC policy, the exclusionary rule does not apply.
The Motion to Continue Ripley's Trial
During the course of his case, Ripley was represented by three different attorneys. By the time the third attorney was appointed, Ripley's trial had been continued two times. At a September 19, 2005 scheduling hearing, the attorney told Judge Weeks that he needed at least thirty days to prepare for trial, and the judge set a trial date for November 14.
Until October 31, 2005, the parties assumed that Dominique Jean would testify as the State's chief witness. As noted above, Jean had made the controlled buys from Ripley on which the prosecution was based. But on October 31, the State filed a notice that Jean would not be available to testify, asserting that the State intended to introduce taped conversations between Jean and Ripley.
At a pretrial hearing on November 8, Ripley's attorney noted that Jean's unavailability raised a suppression issue: admission of the tapes would violate Ripley's right to confrontation under the Sixth Amendment and Crawford v. Washington. But later that day, the State notified Ripley that Jean would in fact be available to testify.
On November 9, Ripley filed an expedited motion for continuance, explaining that his preparation up to that point had been difficult, that he had wasted time drafting the motion to suppress, and that he now had to shift focus because Jean would be testifying. Judge Weeks orally denied the motion to continue without explanation on the day of trial. Ripley now argues that Judge Weeks abused his discretion by denying the motion to continue.
This court reviews a trial court's denial of a motion for continuance for an abuse of discretion. Even if this court determines that a trial court abused its discretion by denying a motion to continue, "reversal will be required only upon a showing of prejudice."
Klockenbrink v. State, 472 P.2d 958, 964 (Alaska 1970).
Boggess v. State, 783 P.2d 1173, 1182 (Alaska App. 1989).
We conclude that Ripley has failed to show any prejudice that resulted from the court's denial of his motion. Ripley does not argue that his attorney was unable to prepare for trial or that he was unable to adequately cross-examine Jean. Ripley argues only that he was prejudiced because his attorney had to shift focus and because he had to spend his pretrial preparation time preparing an unnecessary motion to suppress. These conclusory claims are insufficient to establish the prejudice that would require us to order a new trial. The Rebuttal Case at Trial
Id.
Ripley argues that the rebuttal testimony of Stephen Cantillon and Officer Branson should have been excluded as irrelevant and prejudicial. In order to understand this issue, it is necessary to explain some details of Ripley's defense at trial.
Ripley contended that Dominique Jean was dishonest, biased, mentally ill and delusional. On cross-examination, Ripley tried to establish that Jean unreasonably believed that Ripley's girlfriend, Stephanie Sanders, had killed Jean's unborn child. In response, Jean described an incident where Sanders threatened Jean and his fiancé on a public bus. Jean testified that he had reported the incident to Officer Branson. On redirect examination, Jean testified that he and his fiancé had moved to a tent outside of Juneau after this threat because they were afraid for their lives.
Ripley tried to minimize this threat during the defense's case. He presented testimony from Marshall Harris that Jean had never told Harris that he moved because Sanders had been making threats against him. Ripley also called Jean as a defense witness and asked him to confirm that he had left the state because of his own drug problems; Jean responded that he left because Sanders had threatened him on a public bus.
During rebuttal, Judge Weeks allowed the State to present the following testimony over Ripley's objection: Stephen Cantillon, a Juneau bus driver, testified that he observed an argument between a Native woman and an African American man. The Native woman was complaining that her boyfriend had gotten into legal trouble because of the man's testimony and was explaining the effect of this trouble on her children. Cantillon testified that he did not hear any threats, but said that the situation was approaching a point where intervention would be necessary simply because passengers on the bus are not allowed to harass each other.
Officer Branson then testified that Jean reported that Sanders had threatened him on the bus. He also testified that Marshall Harris was aware that Jean was scared of Ripley.
Ripley argues that these threats were not relevant. However, evidence that a third party attempted to influence a witness at the behest of the defendant is probative of the defendant's consciousness of guilt. Ripley now argues that the State failed to establish that Ripley authorized these threats, but he did not make this argument in his motion to the trial court.
See Stumpf v. State, 749 P.2d 880, 898 (Alaska App. 1988) ("Evidence that a third party attempted to intimidate a witness is admissible against a defendant as manifesting a consciousness of guilt. The State, however, must first establish that the defendant authorized the actions.").
Ripley also argues that the testimony of Cantillon and Branson fell outside the scope of rebuttal. But this testimony corroborated Jean's testimony and rebutted Ripley's defense that Jean was delusional or otherwise unreliable. Cantillon's and Branson's testimony corroborated Jean's claims that Sanders had approached him and that Harris had been pressuring him not to appear at trial. We therefore conclude that Ripley has failed to show that the trial judge abused his discretion by allowing Cantillon and Branson to testify as rebuttal witnesses. Sentencing Claims
See Hess v. State, 20 P.3d 1121, 1123 (Alaska 2001).
Judge Weeks sentenced Ripley to concurrent 6-year terms for each of his three convictions for misconduct involving a controlled substance. Ripley also received concurrent 6-year terms for his two perjury convictions. Judge Weeks imposed a consecutive 1-year term of incarceration for the solicitation of witness tampering conviction, but suspended it on the condition that Ripley successfully complete 2 years of probation. Judge Weeks ordered that Ripley serve the composite 6-year term for the controlled substances convictions consecutively to the composite 6-year term for the perjury convictions.
Ripley was thirty-five years old when he was sentenced. At that time, he had two prior felony convictions, one for burglary and the other for property damage, and twenty-seven misdemeanor convictions. Six of the misdemeanor convictions were for violating court orders. The remaining misdemeanor convictions included unlawful contact, disorderly conduct (challenges to fight), interfering with police, driving while intoxicated, driving with a suspended license, marijuana possession, dangerous drugs, assault, resisting arrest, larceny, and two convictions as a minor possessing or consuming alcohol.
Judge Weeks rejected Ripley's argument that his conduct supporting the perjury convictions was among the least serious, and that the resultant harm to others was minor.
See AS 12.55.155(d)(9).
Based on Ripley's criminal history and the nature of his convictions, Judge Weeks found that Ripley was a worst offender on both the drug and perjury convictions. He found that Ripley was manipulative and that his prospects for rehabilitation were "grim." And he noted that Ripley's presentence report evaluation recommended isolation as the primary sentencing goal. Judge Weeks found that a sentence greater than the maximum for the most serious offense was necessary to protect the public.
This court reviews excessive sentence claims and worst-offender findings to determine whether the trial court's decisions were clearly mistaken. Whether the facts establish a mitigating factor is a legal question that this court reviews de novo. The worst offender finding
State v. Hodari, 996 P.2d 1230, 1232 (Alaska 2000) (reviewing an excessive sentence claim); Hintz v. State, 627 P.2d 207, 211 (Alaska 1981) (reviewing a worst offender finding).
Michael v. State, 115 P.3d 517, 519 (Alaska 2005).
Imposition of a maximum sentence ordinarily requires an express worst-offender finding. A worst-offender finding can be based on the seriousness of a particular offense, on the offender's background, or both.
See State v. Wortham, 537 P.2d 1117, 1120 (Alaska 1975).
Judge Weeks's finding that Ripley was a worst offender was based on Ripley's extensive criminal history: "I look at twenty-six misdemeanor [convictions] and two felonies and the nature of the charges over a wide spectrum of things, and I have to find that you're a worst offender on both the felony charges." He found that Ripley was manipulative, that his prospects for rehabilitation were "grim," and that his employment was "basically non-existent."
Judge Weeks was not clearly mistaken when he concluded that Ripley was a worst offender. Ripley has a lengthy criminal history, including twenty-six misdemeanor convictions and two prior felony convictions. Judge Weeks reasonably concluded that Ripley's perjury convictions were aggravated by the fact that he was using Harris to threaten Jean, an addict with a serious mental illness. The finding that Ripley is a danger to the public
Having made the worst-offender finding, Judge Weeks was authorized to impose a composite sentence of up to 10 years' imprisonment (the maximum sentence) for a class B felony offense. Under the Neal-Mutschler rule, Judge Weeks could not impose a sentence exceeding 10 years to serve unless he found that a longer imprisonment was required to protect the public. Judge Weeks made the requisite finding. He explained that "[t]he law of Alaska is that I have to make the finding that the only way that I can impose the sentence I did is to protect the public, and I do that. I think given your record, that's the way it is."
See Wortham, 537 P.2d at 1120-21.
See Neal v. State, 628 P.2d 19, 21 (Alaska 1981) ("Our past decisions imply that where consecutive sentences for two or more counts exceed the maximum sentence for any single count, the sentencing judge should make a formal finding that confinement for the combined term is necessary to protect the public."); Mutschler v. State, 560 P.2d 377, 381 (Alaska 1977) (citing Mills v. State, 59 P.2d 1247, 1248 (Alaska 1979)).
Ripley's character and behavior support Judge Weeks's conclusion. Judge Weeks found that Ripley was highly manipulative and that he had demonstrated volatile and aggressive behavior. In his telephone calls to Harris from Lemon Creek Correctional Facility, Ripley threatened to get even with Jean when he got out of jail. Ripley's attorney admitted at the sentencing hearing that "[t]here's something going on inside [Ripley] which has caused him to be a very angry person at times, to do irrational things, to make serious mistakes."
Ripley's criminal history demonstrates a lack of respect for authority, including six convictions for failure to follow court orders. Judge Weeks found that Ripley's prospects for rehabilitation were "grim," that he has "profound substance abuse issues," and that there was nothing to suggest to the judge that Ripley's poor decision making would change if he was returned to the community.
The mitigating factor
Judge Weeks concluded that Ripley's perjury convictions were not among the least serious within the definition for this offense. It was Ripley's burden to prove this mitigating factor by clear and convincing evidence. Judge Weeks concluded that he had not met this burden. In this appeal, Ripley cites no case law supporting his contention that perjury that is not premeditated must be classified as the "least serious" within the definition for the offense.
AS 12.55.155(f).
Indeed, there are cases that suggest otherwise. In State v. Bruggeman, the defendant induced his friend to take a paternity test for him in an attempt to get a paternity case against him dismissed. He then perjured himself to cover up his actions. The sentencing judge did not impose jail time, having found that the defendant committed perjury out of immaturity and fear. This court reversed the sentence, holding that committing perjury out of fear and immaturity did not significantly mitigate the conviction. In this case, we agree with Judge Weeks's conclusion that Ripley's lack of planning and his questionable judgment did not mitigate his perjury.
24 P.3d 583, 584 (Alaska App. 2001).
Id. at 584-85.
Id. at 586-87
Id. at 588-89 (citing Huff v. State, 598 P.2d 928 (Alaska 1979)).
Also, in Bruggeman, this court noted that the defendant's perjury was serious because it related to a material issue in the case and the defendant lied in an attempt to defeat the case against him. Likewise in this case, Ripley attempted to escape liability in the drug case by soliciting Harris, threatening Jean, and then lying about his actions on the stand. We agree with Judge Weeks's conclusion that Ripley's false testimony to conceal his attempt to tamper with the main witness in his drug case is not the least serious conduct within the definition of this offense.
Id. at 588 (citing Machado v. State, 797 P.2d 677, 690 (Alaska App. 1990)).
Miscellaneous Issues
Ripley suggests that the perjury and solicitation charges in this case were motivated by prosecutorial vindictiveness. We decline to address the vindictiveness argument because it was not presented to the superior court. Ripley also argues that his testimony at the bail hearing that led to the perjury charges in this case was compelled in violation of his privilege against self-incrimination. We decline to address this issue because Ripley raised it for the first time in his reply brief. Conclusion
See State, Dep't. of Health and Soc. Servs. v. Okuley, 214 P.3d 247, 256 (Alaska 2009) (explaining that failure to raise argument in the trial court resulted in its waiver on appeal).
See McCracken v. State, 914 P.2d 893, 897 n. 1 (Alaska App. 1984).
We therefore AFFIRM the judgment of the superior court.