Opinion
Court of Appeals No. A-10383.
March 2, 2011.
Appeal from the Superior Court, Third Judicial District, Palmer, Kari Kristiansen, Judge, Trial Court No. 3PA-06-754 CR.
Beth G.L. Trimmer, Assistant Public Advocate, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Ann B. Black, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MEMORANDUM OPINION AND JUDGMENT
Alaska State Troopers Investigator Kyle Young obtained a search warrant for a house that was rented by Sven Rofkar, and the troopers seized 111 marijuana plants, along with 1.6 pounds of processed marijuana. Based on this evidence, Rofkar was convicted of four counts of misconduct involving a controlled substance in the fourth degree. Superior Court Judge Kari Kristiansen merged three of the convictions and imposed a sentence of five years' imprisonment. Rofkar also received a concurrent five-year sentence for maintaining a dwelling used for distributing controlled substances. Rofkar now argues against several of Judge Kristiansen's rulings in this appeal.
The Search Warrant Affidavits and the Motion to Suppress Evidence
Young first obtained a warrant allowing him to conduct videotape surveillance of Rofkar's house. After some additional investigation, Young obtained a second warrant allowing him to search the house. Both warrants were supported by Young's affidavits.
Young's affidavits state that he received a call from Juvenile Probation Officer Tom Peria, who advised that he smelled marijuana on two separate occasions while visiting a probationer in Sutton. There was no smell inside the probationer's house, but there was another house nearby (a house that turned out to be Rofkar's house). Young drove by the houses twice and smelled marijuana each time. Young could not pinpoint the source of the smell, but the fact that Peria had already informed Young that there was no smell of marijuana inside his probationer's house led Young to conclude that the smell came from the other house.
Young drove by Rofkar's house on numerous occasions in late December 2005, but the house never appeared to be occupied. Then one day, Young observed a male and a female exit the house and get into a vehicle. Young followed the vehicle to the Wasilla Walmart, where he walked past the woman in question and noticed that she smelled like fresh marijuana.
Young explained that he researched the power usage at both Rofkar's house and the probationer's house, and Rofkar's house had a higher average monthly electrical consumption, despite the fact that the house was smaller and generally unoccupied.
Finally, Young stated that he had never smelled personal-use quantities of marijuana in the air outside a residence because there is not enough plant material to generate the odor. He explained that during the previous four years, the Mat-Su Drug Unit had eighty-one cases that were "discovered by officers smelling the odor of cultivating marijuana" and that ninety-six per cent of these cases involved felony-level grow operations.
Based on Young's application and affidavit, a magistrate found probable cause that Rofkar's house was being used to grow marijuana and issued a surveillance warrant.
When Young attempted to execute the surveillance warrant, he could not find a suitable place for a pole camera. However, when he came in close proximity, he was able to determine that the marijuana smell was coming from Rofkar's house. He obtained a search warrant for the house, based almost entirely on the same information he used to apply for the surveillance warrant plus his recent observations.
Before trial, Rofkar moved to suppress all evidence seized as a result of the two warrants, arguing that the warrants were not supported by probable cause. Judge Kristiansen rejected Rofkar's arguments and found that there was probable cause for the warrants, even if questionable portions were excised from Young's affidavits.
On appeal, Rofkar argues that Young made several misstatements in the warrant affidavits that require the resulting evidence to be suppressed. Generally, if a defendant establishes that statements in a warrant affidavit are false, the state must show that the statements were not recklessly made or intentionally false. Otherwise, the misstatements must be excised from the warrant affidavit. But a reviewing court is not required to excise negligent or innocent misstatements.
State v. Malkin, 722 P.2d 943, 946 (Alaska 1986).
Id.
Id. at 946-47 n. 8.
Rofkar points out that Peria testified at the hearing on the motion to suppress that he had conducted a systematic search of his probationer's residence to look for a marijuana grow. Young's affidavits stated that Peria had not searched his probationer's residence. But if Young's affidavits had stated that Peria ruled out his probationer's residence because he had conducted a systematic search, then the magistrate would have had even stronger proof that Rofkar's house was the source of the smell. Even if we assume that Young misstated this information, there was no prejudice to Rofkar.
Rofkar next argues that Young's search warrant application did not include the daily kilowatt-hours of electrical use at both the probationer's residence and Rofkar's house in October and November 2005. However, Young did provide this information for the surveillance warrant application, and the same magistrate issued both warrants. The record supports the judge's conclusion that Young did not recklessly omit any material information.
Rofkar also contends that Young omitted material information when he compared the electrical usage at Rofkar's house to houses owned by Young's coworkers in Wasilla. Young's search warrant affidavit describes the electrical usage at Rofkar's house and compares it to the two coworkers' houses. The record supports the judge's conclusion that Young did not make any material misstatements about the electrical usage at these houses.
Rofkar next challenges the statistical data compiled by the Mat-Su Drug Unit and reported in both affidavits. As described earlier, Young explained that during the previous four years, the Mat-Su Drug Unit had eighty-one cases that were "discovered by officers smelling the odor of cultivating marijuana" and that ninety-six per cent of these cases involved felony-level growing operations. Rofkar challenges the statistical validity of this data because it does not reflect instances in which the investigators initially went to the wrong house (believing it to be the source of the marijuana smell). Rofkar argues that without this additional information, there was no probable cause that his house held more marijuana than the amount permitted for personal use.
See generally State v. Crocker, 97 P.3d 93, 95 (Alaska App. 2004) (holding that a search warrant for a residence must show probable cause that the amount of marijuana inside exceeds the amount that is constitutionally protected for personal use).
Judge Kristiansen concluded that any defects in Young's statistical analysis were neither intentional nor reckless. This finding is reasonably based on Young's testimony at the hearing. We accordingly conclude that the trial court was not required to excise this information when it determined that the warrants were adequately supported by probable cause.
The Challenge to a Trial Juror Experienced in Drug Enforcement
During jury selection, Rofkar exercised all his peremptory challenges. The court then seated prospective juror T.R. T.R. testified that he had investigated suspected marijuana growing operations as a member of a Coast Guard helicopter crew in the 1980s. He stated that when he thinks of marijuana grow operations, he thinks about "a man on the ground with his fully automatic weapon shooting up at the big white helicopter with [T.R.] standing in the door."
Rofkar's attorney then asked T.R. several times whether he could be an impartial juror despite his drug enforcement background. T.R. repeatedly stated that he was an "honest, open-minded person" and that he would require the prosecution to prove Rofkar's guilt before passing judgment.
The court then stepped in, asking T.R., "Is there anything about your experience that you believe you cannot set aside so that you could [not] be fair and impartial?" T.R. answered, "Not that I'm aware of, no." The court then denied Rofkar's challenge for cause and his request for an extra peremptory challenge.
O n appeal, Rofkar argues that T.R.'s voir dire testimony shows that he could not have been impartial because of his experience in the Coast Guard. To prevail on this claim, Rofkar must show that Judge Kristiansen's ruling to keep T.R. on the jury was an abuse of discretion.
Minch v. State, 934 P.2d 764, 769 (Alaska App. 1997).
"[T]he record need not reflect 'unequivocal and absolute' impartiality on the part of a juror. . . . '[A]ll that is required of a prospective juror is a good faith statement that he or she will be fair, impartial and follow instructions.'" T.R. repeatedly stated that he would wait for the State to prove its case before making any judgment and that he could be impartial despite his Coast Guard experience. We conclude that Judge Kristiansen did not abuse her discretion when she denied the challenge for cause.
Hammock v. State, 52 P.3d 746, 749 (Alaska App. 2002) (quoting Sirotiak v. H.C. Price Co., 758 P.2d 1271, 1277 (Alaska 1988).
Rofkar also suggests in a section heading that the trial court abused its discretion by not granting him an additional peremptory challenge. However, he does not address this issue in his argument, so this issue is waived. The Evidence of Greta Rofkar's Police Interview
Alto v. State, 64 P.3d 141, 147 (Alaska App. 2003).
Rofkar's sister, Greta, did not testify at trial (though she was under subpoena). But during the defense attorney's cross-examination of Young, the defense attorney asked Young about statements that Greta had made during a pretrial interview. The apparent object of this cross-examination was to suggest that Greta, and not the defendant, was the person actually supervising the marijuana grow:
Defense Attorney: Okay. Now, as part of your investigation, you learned that Greta Rofkar had cared for the plants?
Prosecutor: I ob . . .
Defense Attorney: And by cared I mean watered the plants.
Young: I learned that through speaking with her, yes.
Defense Attorney: Okay. In fact, you learned that she had watered the plants on January 11, 2006?
Young: That's what she told me.
Defense Attorney: Okay. And that was the same day that you [served] the warrant? You served the . . . [search warrants on Jan . . .]
. . . .
Young: . . . January 11th, correct.
Defense Attorney: Okay. So you learned that she had watered the plants the very day that you had served the search warrant? Young: Yeah, she — she had told me that she had been there that morning prior.
Shortly after this point in the cross-examination, the prosecutor requested a bench conference. In this bench conference, the prosecutor sought permission to introduce the complete statement that Greta had made to Young on this subject. According to the prosecutor's offer of proof, Greta's complete statement to Young was that she was watering the marijuana plants for Rofkar.
Rofkar's counsel conceded that an additional portion of Greta's out-of-court statement was necessary to clarify the portions that he had elicited during his cross-examination of the police officer. Rofkar's counsel stated three times that he would not object if the State clarified the context of Greta's statements by asking whether she was watering the plants for Rofkar. Based in part on this concession, Judge Kristiansen ruled that Young could testify that Greta told him that she was watering the plants for Rofkar.
But despite having agreed to the admission of this evidence in the trial court, Rofkar now argues on appeal that Young's testimony about Greta's out-of-court statement violated Rofkar's rights under the confrontation clause.
See generally Crawford v. Washington, 541 U.S. 36 (2004) (holding that, under the Confrontation Clause, out-of-court statements by witnesses that are testimonial are barred unless witnesses are unavailable and the defendant previously had the opportunity to cross-examine the witnesses).
Under the doctrine of plain error, we may consider claims of error that were not raised or properly preserved in the lower court. But we will not entertain a claim of plain error when the appellant actively invited the trial court to make the ruling that is challenged on appeal. This doctrine of "invited error" applies "when the [lower] court takes [the] erroneous action at the express request of the [appellant], and then the [appellant] urges reversal on that basis on appeal." Under the doctrine of invited error, a defendant who invites or urges the trial judge to commit error may not seek relief from that error on appeal.
Barrett v. State, 772 P.2d 559, 568 n. 10 (Alaska App. 1989).
id.
Dayton v. State, 120 P.3d 1073, 1083-84 (Alaska App. 2005); see Putnam v. State, 629 P.2d 35, 39-40 (Alaska 1980), overruled on other grounds by Stephan v. State, 711 P.2d 1156 (Alaska 1985).
Here, Rofkar's attorney cross-examined Young in a manner that actively elicited testimonial hearsay: Greta's prior out-of-court statements to the police about her role in watering the marijuana plants. The prosecutor responded with a motion under Alaska Evidence Rule 106 (the rule of completeness) for permission to introduce the clarifying remainder of Greta's statements about watering the plants — namely, her statement that she had performed this service for her brother, the defendant. Confronted with this motion, the defense attorney conceded that the prosecutor was entitled to introduce this clarifying portion of Greta's out-of-court statement.
It is arguable that, when the defense attorney initiated this episode by actively eliciting testimonial hearsay during his cross-examination of Young, the defense attorney waived Rofkar's confrontation rights with respect to any other portions of Greta's statement that were properly admissible under Evidence Rule 106 — that is, those other portions of the out-of-court statement that were necessary to clarify the hearsay that the defense attorney had already elicited.
See generally Sipary v. State, 91 P.3d 296, 299-300 (Alaska App. 2004) ("[T]he admissibility of other portions of the statement is limited to those portions that are necessary to a proper understanding of the previously admitted portions.").
But even if the defense attorney's actions did not amount to an outright waiver of Rofkar's right of confrontation with regard to this additional portion of Greta's out-of-court statement, Rofkar is still barred from pursuing this claim on appeal because the error, if any, was actively invited by Rofkar's attorney.
The Motion for a Judgment of Acquittal
Rofkar moved for a judgment of acquittal on the charge that he knowingly manufactured or distributed one ounce or more of marijuana, arguing that there was no evidence presented that he had "watered, trimmed, or cultivated the plants in any way." The trial judge denied the motion and Rofkar appeals from this ruling.
See generally AS 11.71.040(a)(2) (fourth-degree misconduct involving a controlled substance).
The "manufacture" of a controlled substance, as used in this charge, includes the "propagation" or "growing" of marijuana. We must view the evidence in the light most favorable to the jury's verdict, and uphold the verdict if a fair-minded person could reasonably conclude that the evidence proves this charge beyond a reasonable doubt.
See AS 11.71.900(13)(A).
Hilbish v. State, 891 P.2d 841, 852-53 (Alaska App. 1995).
There was substantial evidence supporting the jury's decision. Young testified that he observed Rofkar enter the Sutton house on several occasions, sometimes remaining on the property for at least four hours. The only furniture in the house was a loveseat and a mattress on the floor; otherwise the house was full of marijuana plants.
The search of the house revealed a number of items with Rofkar's name, including prescription drug bottles, a power strip used to operate the grow equipment, and rent receipts. In addition, Greta told Young that she was tending the marijuana plants in the house for Rofkar. Based on this evidence, a reasonable juror could conclude that Rofkar was guilty of growing marijuana.
The Separate Conviction for Maintaining a Dwelling
Rofkar was convicted of four charges of misconduct involving a controlled substance in the fourth degree: manufacturing or delivering one ounce or more of marijuana, possessing one pound or more of marijuana, possessing twenty-five or more marijuana plants, and maintaining a dwelling for keeping or distributing controlled substances. Judge Kristiansen merged the first three convictions at sentencing. Rofkar now argues that the double jeopardy clause requires that his conviction for maintaining a dwelling for keeping or distributing controlled substances merge with his other convictions.
See AS 11.71.040(a)(2).
See AS 11.71.040(a)(3)(F).
AS 11.71.040(a)(3)(G).
AS 11.71.040(a)(5).
See generally Maness v. State, 49 P.3d 1128, 1139 (Alaska App. 2002) (Mannheimer, J., concurring) ("[U]nder some circumstances, Alaska's double jeopardy clause might be violated if a defendant received separate convictions for possessing drugs and for maintaining a dwelling or building to keep those same drugs.").
In Whitton v. State, the Alaska Supreme Court established the procedure a sentencing judge must follow to determine whether separate statutory offenses constitute the same offense for double jeopardy purposes:
479 P.2d 302 (Alaska 1970).
[The trial judge must] judge any . . . differences [in intent or conduct] in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments. . . .
. . . [I]f there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy.
Id. at 312.
We previously applied this test in Davis v. State to determine whether the double jeopardy clause prohibits separate convictions for possession of cocaine with intent to deliver and maintaining a dwelling used for keeping or distributing cocaine. We concluded that these offenses "differ markedly in the conduct that they prohibit and in the specific social interests that they seek to preserve." We therefore held that the entry of separate convictions did not violate the defendant's protection against double jeopardy.
766 P.2d 41, 45-46 (Alaska App. 1988), superseded on other grounds by Alaska R. Crim. P. 16(c)(5), as recognized in Marshall v. State, 238 P.3d 590 (Alaska 2010).
Id. at 46.
Id.
In his reply brief, Rofkar asserts that the Davis case is in error. But we are bound to follow a prior decision unless we are "clearly convinced that the precedent is erroneous or no longer sound because of changed conditions, and that more good than harm would result from overturning the case." Because of the way that this issue has been raised, the parties have not had the opportunity to argue whether the Davis case should be overrruled. We conclude that Rofkar has failed to make the argument necessary for us to overrule this precedent.
Kinegak v. State, Dep't of Corr., 129 P.3d 887, 889-90 (Alaska 2006).
Rofkar also contends that the State cannot argue against his position because it is barred by the doctrine of judicial estoppel. This doctrine prevents a litigant from taking a litigation position that is inconsistent with their position in prior litigation when the circumstances render this turnabout unconscionable. Rofkar points out that the State relied on the evidence that Rofkar provided the dwelling for this marijuana operation when it argued that there was sufficient evidence to support his conviction for manufacturing marijuana. He argues that the State cannot now take the position that the same evidence supports a separate conviction for maintaining this dwelling.
See Union Oil Co. of Cal. v. State, 804 P.2d 62, 66 n. 7 (Alaska 1990).
But the State did not argue that the evidence that Rofkar provided this dwelling was the only evidence supporting the charge of manufacturing marijuana. There was also evidence that Rofkar had provided the equipment and tended the plants. Moreover, the assertion that the same evidence could apply to both charges is not necessarily inconsistent with the State's argument on Rofkar's double jeopardy claim. A single act can support multiple convictions where the separate crimes involve different societal interests. We conclude that the State is not barred by judicial estoppel because the position the State argued in response to the motion for acquittal does not contradict the position it has taken in this court. Conclusion
See Harmon v. State, 11 P.3d 393, 395 (Alaska App. 2000) (affirming separate convictions for incest and second-degree sexual assault).
See generally Simpson v. Murkowski, 129 P.3d 435, 442 n. 27 (Alaska 2006) (declining to address whether judicial estoppel applied to the state because the state did not contradict its position).
We AFFIRM the superior court's judgment and sentence.