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Frank Henry Marshall v. State of Alaska

August 20, 2010

FRANK HENRY MARSHALL, PETITIONER,
v.
STATE OF ALASKA, RESPONDENT.



Supreme Court No. S-13401 Court of Appeals No. A-09721 Superior Court No. 3AN-03-12471 CR Petition for Hearing from the Court of Appeals of the State of Alaska, on Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Philip R. Volland and John Suddock, Judges.

The opinion of the court was delivered by: Carpeneti, Chief Justice.

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail corrections@appellate.courts.state.ak.us.

OPINION

Before: Carpeneti, Chief Justice, Fabe, Winfree, and Christen, Justices.

I. INTRODUCTION

In a criminal trial for misconduct involving a controlled substance, the defendant asserted the affirmative defense of entrapment and requested a hearing. The trial court denied the request because defendant had not submitted evidence supporting the elements of entrapment.

The question now before us is whether a trial court must hold a hearing on the affirmative defense of entrapment even when the defendant fails to submit evidence to support each element of the defense. Because the right against self-incrimination exempts a criminal defendant from any requirement of making an evidentiary showing, we hold that a trial court must provide a hearing on entrapment when the issue is raised by a defendant and the defendant requests a hearing. Accordingly, we remand to the superior court for a hearing.

II. FACTS AND PROCEEDINGS

A. Facts

In May 2006 a jury convicted Frank Marshall on one count of seconddegree misconduct involving a controlled substance. The conviction was for selling OxyContin pills to an undercover police officer on November 25, 2003.*fn1

Two police informants, Robert Clossey and Margaret Purcell, participated in Marshall's drug sale. They had been arrested in April 2002 for selling OxyContin and were helping the police in exchange for favorable treatment.

According to Clossey, Marshall contacted Clossey November 24, 2003, because Marshall -- who was allegedly homeless -- had an OxyContin prescription and wanted to sell the pills. Clossey and the other informant, Purcell, took Marshall in, fed him, and let him stay with them. Although neither Clossey nor Purcell confirmed it, the defense's theory of the case was that the informants drove Marshall to the pharmacy to pick up his prescription. The next day, November 25,Clossey made arrangements with the police for the undercover sale.

To complete the sale, Clossey drove Marshall to a pre-arranged spot where the undercover officer walked up to Marshall, who sat in the vehicle's passenger side. Clossey negotiated the sale and then Marshall handed the pills to the undercover officer.

Upon driving away, Clossey and Marshall were pulled over and arrested. A search of the vehicle revealed prescription receipts in Marshall's name, an OxyContin pill on the passenger side floor, and $600 cash ...


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