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Frank Henry Marshall v. State of Alaska


August 20, 2010


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


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


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.


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 hidden in the springs of the passenger's seat cushion.

B. Proceedings

1. Superior Court

A grand jury indicted Marshall on three counts of misconduct involving a controlled substance as a result of the drug sale.

Marshall moved to dismiss the counts based on due process violations and the affirmative defense of entrapment. He included in the title of his motion the words "Request for Hearing," but did not further allude to a hearing in the body of his motion. Marshall's motion summarized Alaska's adoption of the "objective" entrapment defense and alleged that the OxyContin sale had been initiated and arranged by the informant, Clossey. Marshall also claimed that the pills could have been Clossey's, not his. The State's opposition pointed out that Marshall had no evidence supporting his claim that the pills belonged to Clossey.

The superior court dismissed one of the three counts against Marshall, but denied the rest of Marshall's motion to dismiss and request for a hearing. In its decision the court focused on whether the pills had been Clossey's or Marshall's, and found no evidence that they were Clossey's. Accordingly, since Marshall had not submitted evidence supporting his entrapment defense, the court denied the request for a hearing. After trial, a jury convicted Marshall on one count of misconduct involving a controlled substance in the second degree.

2. Court of Appeals

Marshall appealed his conviction.*fn2 Regarding entrapment, the court of appeals focused on whether Clossey or Marshall had provided the pills -- the same focus as the superior court.*fn3 The court noted that Marshall had the opportunity to present evidence, such as an affidavit, but did not do so.*fn4 The court of appeals affirmed Marshall's conviction, holding that pre-trial motions require a hearing only if the moving party has alleged specific facts supported by evidence.*fn5

We granted Marshall's petition for hearing on a question: whether it was error to refuse to hold an evidentiary hearing on Marshall's affirmative defense of entrapment.


The interpretation of procedural rules is a legal question which we review de novo.*fn6 We also review de novo whether the defendant's assertion of an affirmative defense is sufficient to require the trier of fact to consider the defense.*fn7


We must decide whether it was proper for the superior court to deny Marshall's request for a hearing on entrapment on the ground that Marshall did not submit evidence demonstrating that all elements of entrapment could be met. The superior court observed that Marshall could have met that evidentiary burden by submitting an affidavit attesting to the elements of entrapment.*fn8 We consider whether such a submission should be a prerequisite to obtaining a hearing on entrapment.

Article I, section 9, of the Alaska Constitution states: "No person shall be compelled in any criminal proceeding to be a witness against himself." In Scott v. State,*fn9 we interpreted this broadly, holding that it "prohibits extensive pretrial prosecutorial discovery in criminal proceedings."*fn10 Accordingly, defendants need only give notice of defenses they intend to rely on, and courts may not compel potentially incriminating testimony.*fn11 Based on this precedent, Alaska Criminal Rule 16(c)(5) requires defendants to disclose, at least ten days before trial, only their intent to rely on entrapment, and not further details.*fn12

Scott is the foundational case addressing whether courts can require defendants to disclose, through discovery, information supporting a defense -- in that case, the alibi defense.*fn13 Even though the ultimate burden of persuasion regarding the defense rests on the defendant, in Scott we held that it would violate Alaska's right against self-incrimination for a court to compel early production of potentially incriminating testimonial statements.*fn14 We were persuaded by the "historical and constitutionally guaranteed right of a defendant in a criminal case to remain completely silent, requiring the state to prove its case without any assistance of any kind from the defendant himself."*fn15 We were keenly aware that a defendant might assert an alibi as a last resort, only if the prosecution had made a particularly strong case at trial.*fn16 In such a case, compelling disclosure from the defendant early -- before the defendant had firmly decided whether to assert the defense -- would violate the defendant's right against self-incrimination.*fn17

Both Scott and Criminal Rule 16(c)(5) bear on the present case. Here, without holding a hearing, the superior court denied Marshall's affirmative defense for failure to submit evidence showing that the drugs belonged to informant Clossey, not Marshall. Presumably this evidence would have been in the form of an affidavit by Marshall.*fn18 Such an affidavit would require Marshall to testify regarding aspects of the transaction, in violation of Article I, section 9, of the Alaska Constitution, and would exceed the minimum disclosure required by Criminal Rule 16(c)(5). This is precisely the type of disclosure we prohibited in Scott, because it would require the defendant to testify in a situation where he otherwise could exert his right not to testify. At a hearing, Marshall might establish entrapment by employing methods besides his own testimony.

Accordingly, if trial courts required defendants to produce evidence of each element of a defense before granting a hearing, the result would potentially violate the defendant's constitutional right to avoid compelled testimony by requiring more extensive disclosure than the Alaska Constitution allows.*fn19 Additionally, Criminal Rule 16(c)(5) protects defendants against compelled self-incrimination by requiring them to disclose, in advance of trial, only notice of their intent to rely on the affirmative defense of entrapment, and not additional evidence. We therefore hold that a defendant need only give notice of his or her intent to rely on entrapment, but need not produce evidence supporting the defense before receiving a hearing.

We are not persuaded otherwise by the appellate court's citation to Adams v. State*fn20 and Davis v. State.*fn21 The court of appeals relied on those cases to show that pretrial motions require a hearing only if the moving party has alleged specific facts supported by affidavits or other documentation.*fn22 But both cases predate Criminal Rule 16(c)(5).*fn23 Also, both cases rely on Alaska Civil Rule 77, which states that evidence must be attached to a pre-trial motion.*fn24 However, Criminal Rule 42 now governs that issue in the criminal context, and does not require the attachment of affidavits, as does Civil Rule 77.*fn25 Thus, we are unpersuaded that Adams and Davis trump the protections of Criminal Rule 16(c)(5).

Finally, we note that Marshall's case was taken off-track by a mistaken focus on whose OxyContin pills were exchanged. Although one sentence in Marshall's request for a hearing asserted that the pills might have belonged to the informant, the request otherwise provided specific allegations of extensive government involvement in the sale, including the allegations that the government informants took Marshall in, providing food and a place to stay; took him to the pharmacy to help him fill his prescription; arranged the sale; drove Marshall to the sale; and conducted all negotiations with the undercover police during the sale. Because entrapment exists when the police use "fundamentally unfair or dishonorable practices" inducing someone to commit a crime,*fn26 these facts could support an entrapment defense. Examples of prohibited conduct include "extreme pleas of desperate illness, appeals based primarily on sympathy, pity, or close personal friendship, and offers of inordinate sums of money."*fn27 Thus, even were the pills undisputedly Marshall's, Marshall could possibly avail himself of the entrapment defense.


Criminal Rule 16(c)(5) protects defendants against compelled self-incrimination by requiring them to disclose, in advance, only notice of their intent to rely on the affirmative defense of entrapment, and not additional evidence. Requiring criminal defendants to produce additional evidence of entrapment in order to obtain an evidentiary hearing on the matter would render the protections of Criminal Rule 16(c)(5) irrelevant, and would violate the Alaska Constitution's prohibition against selfincrimination.*fn28 Accordingly, a criminal defendant need only give notice of his or her intention to rely on entrapment in order to receive a hearing on the matter. Because Marshall gave such notice, he should have received a hearing. We REMAND the case to the superior court for proceedings consistent with this opinion.

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