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Marshall v. State

Court of Appeals of Alaska

December 24, 2008

Frank Henry MARSHALL, Appellant,
STATE of Alaska, Appellee.

Page 568

G. Blair McCune, Anchorage, and Frank Henry Marshall, in propria persona, Seward, for the Appellant.

Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and

Page 569

Talis J. Colberg , Attorney General, Juneau, for Appellee.

Before : COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.



On November 25, 2003, Frank Henry Marshall handed nineteen 40-milligram Oxycontin pills to an undercover police officer in exchange for $600 cash. This transaction ultimately led to Marshall's conviction at trial on one count of second-degree misconduct involving a controlled substance.[1]

Marshall raises several issues in this appeal. He contends that the superior court erred when it rejected his entrapment claim without providing him an evidentiary hearing. We conclude that the superior court properly denied Marshall's claim without a hearing.

Marshall next contends that the superior court erroneously denied his motion to suppress evidence the police seized from the truck in which he was a passenger when he exchanged the nineteen pills for the $600 cash. We conclude that Marshall lacked standing to object to the entry into the truck and the seizure of the cash and a pill found on the floor because he had no reasonable expectation of privacy to assert in the pill and the cash seized. With regard to a bag of drug prescriptions found in the dash, although Marshall may have had a subjective expectation of privacy in the bag and its contents, the bag and some of the contents were visible, and the character of the bag and contents as evidence of the recently completed drug transaction was readily apparent.

Marshall attacks the superior court's evidentiary ruling permitting the State to admit evidence that Marshall possessed other controlled substances when he was arrested. On appeal, the State agrees with Marshall that the evidence should have been excluded, but argues that the admission of this evidence was harmless. We question whether we should accept the State's concession of error, particularly in light of the defense Marshall advanced at trial-Marshall argued that the State had not proven beyond a reasonable doubt that he knew that he was exchanging the nineteen Oxycontin pills he handed the undercover officer for $600 cash. His collection of prescriptions, pills, and pill bottles is seemingly relevant to his general knowledge of prescription pills and the identity of the pills he transferred to the officer. Even so, we conclude that if the admission of this evidence was error, the error was harmless.

Shortly Before trial, the prosecutor and one of the police officers interviewed Robert Clossey, an informant and the driver of the truck when Marshall exchanged the pills for cash. Because the prosecutor recorded the interview, the recording was discoverable under Alaska Criminal Rule 16(b)(1)(A)(i) since it was a recorded statement of a witness. The prosecutor provided this discovery during trial. We conclude that the superior court did not abuse its discretion when it rejected Marshall's request for a mistrial or his alternative request for a continuance.

Marshall, who was granted co-counsel status on appeal, raises several pro se claims. We reject his claims that he was entitled to dismissal of the charges because he did not receive a preliminary hearing, that he was arrested without probable cause, that the police wrongfully listened to the transaction using a " safety wire" without a warrant, that he was subject to vindictive or selective prosecution, and that he was not afforded a speedy trial.

Because Marshall was a second felony offender for purposes of presumptive sentencing, he faced a 10-year presumptive term. Marshall proposed several statutory mitigating factors, but the superior court concluded that Marshall had not met his burden of proof on those factors. After reviewing the sentencing record, we uphold the superior court's rejection of the mitigators.

Marshall also contends that his sentence is excessive. But the Superior Court was not authorized to reduce the presumptive term in the absence of mitigating factors, and Marshall

Page 570

did not argue that the case should be referred to the three-judge sentencing panel. Accordingly, we affirm Marshall's conviction and sentence.

Background facts

Robert Clossey and his companion, Margaret Purcell, both police informants, learned that Marshall wished to sell Oxycontin that he obtained with a prescription. They arranged for Marshall to make a sale to an undercover police officer.

Clossey and Purcell were informants because both were arrested for selling Oxycontin to undercover police in April 2002. Both agreed to help the police in the hope of favorable treatment. Police struck a deal with Clossey and Purcell, explaining that they could avoid prosecution or receive mitigation if they acted as informants; specifically, if they contacted police to set up undercover drug buys with people selling Oxycontin or cocaine.

On November 24, 2003, approximately fifteen months after her arrest for selling Oxycontin, Purcell contacted Officer Steve Haas to report that a man named Frank Marshall had a prescription for Oxycontin and wanted to sell some pills. That same day, Clossey was unsuccessful in his attempt to reach his contact, Detective Jason Penman of the Anchorage Police Department Metro Drug Unit. Because Clossey and Purcell believed Marshall to be homeless and that it might be difficult to find him later, they invited him to eat dinner at their house and stay the night.

The next day, Clossey reached Penman and told him that Marshall wanted to sell a portion of his Oxycontin prescription. Penman decided that while undercover, Haas would buy twenty Oxycontin pills from Marshall for $600. Clossey agreed to drive Marshall to a parking lot on Tudor Road to complete the transaction. Marshall filled his Oxycontin prescription that same day-November 25.

Police had not met with Clossey Before he drove Marshall to the agreed-upon location. When Clossey pulled into the parking lot, Haas approached the passenger side of Clossey's truck. Clossey did most of the talking, announcing the terms of the sale out loud. Marshall then handed Haas nineteen pills in exchange for $600 (the sale was intended to be for twenty pills, but a single pill was later found on the floor of Clossey's truck).

After the exchange, Clossey and Marshall drove away. Immediately afterwards, two patrol cars, one driven by Anchorage Police Sergeant Roy LeBlanc and the other by Officer Jeff Bell, surrounded Clossey's truck. In an effort to conceal Clossey's role, the police arrested and searched him along with Marshall. Bell seized prescription pill bottles for Oxycontin, hydrocodone, and diazepam from Marshall. There were twenty-eight pills of Oxycontin remaining from Marshall's sixty-pill prescription, and eighty pills of hydrocodone remaining in a one-hundred-and-eighty-pill prescription bottle. LeBlanc then searched Clossey's truck and found two purple bags containing prescription receipts and documents with Marshall's name on them, one pill of Oxycontin on the floor of the passenger's side, and the $600 cash hidden in the springs of the passenger's seat cushion.

Detective Penman interviewed Marshall at the station and recorded that interview. During the interview, Marshall denied any wrongdoing.

The grand jury charged Marshall with two counts of second-degree misconduct involving a controlled substance and one count of third-degree misconduct involving a controlled substance. The first count of second-degree misconduct charged Marshall for the delivery of nineteen Oxycontin pills to the undercover officer in exchange for $600. The second charged Marshall with intending to deliver the remaining Oxycontin pills in his prescription that were found with him when he was arrested. And the count for third-degree misconduct charged Marshall with intending to deliver pills from his remaining supply of prescriptions that were found with him when he was arrested: specifically, hydrocodone. The superior court granted Marshall's motion to dismiss the charge of third-degree misconduct, and Marshall proceeded to trial on the second-degree misconduct charges. The jury convicted Marshall on the first of these charges, and acquitted him on second.

Page 571

Why we uphold the superior court's decision to deny a hearing on Marshall's entrapment claim

Marshall filed a motion asking the superior court to dismiss the charges against him on the theory that he had been entrapped. The superior court denied this motion without holding an evidentiary hearing. On appeal, Marshall argues that it was error for the superior court to rule on the entrapment motion without first holding an evidentiary hearing.

In his motion, Marshall's theory of entrapment was that the Oxycontin pills delivered to the police officer did not actually belong to Marshall; instead, he maintains that the pills were the property of Clossey. Marshall thus suggested that the State's evidence on this point (that is, that the pills belonged to Marshall) was not conclusive. He argued that the evidence was at least arguably consistent with the theory that Clossey supplied the pills, and that Marshall's only involvement in the transaction was that Clossey passed the pills to Marshall so that he could then hand the pills to the undercover officer (the purported purchaser).

These assertions, if proved, would establish entrapment under the Bueno theory of entrapment. This doctrine, first announced in United States v. Bueno, [2] holds that it is entrapment for the police to set up a drug deal by supplying their informant with drugs, arranging the " sale" of these drugs to another undercover officer, and then having the informant induce the defendant to act as the middleman in the transaction.

However, the Bueno doctrine is no longer part of the federal law of entrapment, and it is unclear whether the Alaska law of entrapment includes the Bueno doctrine.

Five years after it was announced, the Bueno theory of entrapment was rejected by the United States Supreme Court as being inconsistent with the federal approach to that doctrine, which hinges on a defendant's subjective willingness to engage in criminal conduct.[3] That same year, in Evans v. State, [4] the Alaska Supreme Court indicated that the Bueno theory of entrapment was " quite compatible" with Alaska's objective approach to entrapment, but the supreme court did not decide whether to adopt the Bueno doctrine as a matter of state law (because, even under the Bueno doctrine, the facts of Evans did not establish entrapment).

And in Bush v. State,[5] this court stated that the Bueno theory of entrapment " seems to have been adopted by Alaska" because the supreme court referred to this theory approvingly in Evans and later in Coffey v. State.[6] However, we now rescind that assertion. Neither Evans nor Coffey explicitly ...

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