Petition for Hearing from the Court of Appeals of the State
of Alaska, on appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Court of Appeals No.
A-11048, Superior Court No. 4TO-09-00151 CR, Tok, Robert B.
Downes, Judge.
Susan
Orlansky, Reeves Amodio LLC, and Marjorie Mock, Anchorage,
for Petitioner.
Ann B.
Black, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Respondent.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
MAASSEN, JUSTICE
I.
INTRODUCTION
The
police entered the defendant's property and found 15
marijuana plants, which when stripped and dried yielded over
a pound and a half of marijuana. At trial the court excluded
the defendant's testimony that he believed he possessed
less than four ounces of marijuana - the statutory limit -
and failed to instruct the jury that it had to find a
culpable mental state with regard to the marijuana's
weight. The jury convicted the defendant of possessing at
least four ounces, a class C felony. On appeal, the court of
appeals held that the trial court erred both by barring the
defendant's testimony about his subjective belief and by
omitting a mental state element from the jury instructions.
But finding these errors harmless, the court affirmed the
defendant's conviction.
On his
petition for hearing to this court, the defendant argues for
the first time that the alleged errors at trial are
structural errors; that is, that the constitutional rights
they affect are so important that they cannot be subject to
harmless error review. We agree conditionally and in part. We
hold that omitting from jury instructions a contested element
of an offense - here the defendant's mental state
regarding the marijuana's weight - is structural error.
We further hold that the restriction on the defendant's
testimony in this case - which we agree was error - was not
harmless beyond a reasonable doubt, though we do not reach
the question whether it was structural error.
Our
decision of these issues, however, assumes that the
defendant's possession of marijuana in a greenhouse on
his residential property should be afforded the same
constitutional protections given to his possession of
marijuana in the home. Whether this is a legitimate
assumption was not decided in either the superior court or
the court of appeals. We therefore reverse the court of
appeals' decision and remand to the superior court to
consider in the first instance whether the constitutional
protections apply.
II.
FACTS AND PROCEEDINGS
In 2008
the police found 15 marijuana plants on Antonio Jordan's
property in Tok. Possessing four or more ounces of marijuana
is a class C felony.[1] The police lacked the immediate means to
weigh the marijuana by the statutorily approved method for
live plants (the "one-sixth" method),
[2] so
they stripped off the leaves and dried and weighed them; this
method yielded over 25 ounces.
Jordan
was indicted on a charge of violating AS
11.71.040(a)(3)(F).[3] He moved to dismiss the indictment on the
ground that the method used to weigh the marijuana was not
legally sanctioned. The superior court denied the motion,
reasoning that the "one sixth" method described in
AS 11.71.080 is not exclusive and that the police had used a
reasonable alternative.
A.
The Exclusion Of Jordan's Testimony
Near
the beginning of trial the court granted the State's
request for a protective order precluding the defense from
raising the statutory weighing method "for purposes of
cross examination and otherwise during the presentation of
the evidence." Later, after the State rested its case,
Jordan's attorney asked the court "to reconsider its
ruling on the protective order because it's going to in
large part affect Mr. Jordan's decision whether or not to
testify." According to the attorney, Jordan would
testify that "he would not expect the amount of
marijuana that he had been growing to come out to more than
four ounces . . . after it was processed by the troopers,
" and that Jordan's belief was "informed by his
knowledge and research of the statutory method for weighing
marijuana... prescribed in AS 11.71.080." The attorney
said that "if the court would not allow Mr. Jordan to
testify as to that, then we would not be calling him."
Under these circumstances, the attorney argued, the
protective order excluding any mention of the "one
sixth" statutory weighing method interfered with
Jordan's constitutional rights to testify and to present
"a full and fair defense."
The
superior court decided, however, that it was "not going
to allow the testimony." The court said Jordan's
proposed testimony that his marijuana weighed less than four
ounces seemed "almost ludicrous to me"; given the
number of marijuana plants involved in the case, the court
considered the proposed testimony "incredible. It just
doesn't make sense." The court added that it was not
going to allow Jordan to "get into the law, get into ...
the correct way that the law reads and then make that the
issue." The court then inquired of Jordan whether he was
voluntarily giving up his right to testify, as required by
Alaska Criminal Rule 27.1;[4] Jordan answered, "Well, . .. given
your ruling, ... I do not wish to testify."
B.
The Jury Instruction
The
superior court instructed the jury that the State had to
prove Jordan "knowingly possessed a schedule VIA
controlled substance;... that the substance was marijuana;
and . . . that the aggregate weight was four ounces or
more." In this formulation the adverb
"knowingly" modifies only the first element of the
crime, possession of "a schedule VIA controlled
substance"; the instructions thus did not require the
State to prove that Jordan's possession of "four
ounces or more" of the substance was also knowing. The
instructions included no mental state requirement at all as
to the amount.
C.
The Court Of Appeals Decision
Jordan
was convicted of two counts of fourth-degree misconduct
involving a controlled substance. On appeal, he argued both
that he should have been allowed to testify about his
subjective belief regarding the marijuana's weight and
that the jury lacked complete instructions on the mental
state necessary to support a guilty verdict. The court of
appeals agreed with Jordan on both arguments.[5] Citing the Alaska
Constitution's privacy clause[6] and Ravin v.
State[7] - which protect citizens' private
possession of small amounts of marijuana in the home - the
court of appeals held that due process required proof of a
mental state as to amount: that Jordan did not
"reasonably (i.e., non-negligently) believe[] that [he]
possessed less than four ounces."[8]The court of
appeals also held that Jordan's proposed testimony
regarding his subjective belief should have been admitted
despite the judge's skepticism about it because "it
is the jury's role to assess and resolve questions of
truthfulness and credibility."[9] The court concluded,
however, that both these errors were harmless beyond a
reasonable doubt because "[t]he evidence was
overwhelming that, even if Jordan may have subjectively
believed that the amount of marijuana in his possession was
less than four ounces, Jordan's assessment was
unreasonable."[10]
D.
The Petition For Hearing
Jordan
petitioned for hearing, arguing that the superior court's
errors were structural and therefore not amenable to harmless
error review. We granted review on two questions:
1) Was it structural error to deny Jordan's request to
testify that he believed the marijuana in his greenhouse was
under the four-ounce limit? Should we overrule our reliance
on the harmless error analysis we applied inLaVigne v.
State, 812 P.2d2l7, 220 (Alaska 1991)?
2) Was it structural error to fail to instruct the jury that
the State must prove that Jordan acted at least negligently
regarding the circumstance that the marijuana weighed four
ounces or more?[11]
We
assume, as the court of appeals did, that Jordan's
possession of marijuana under the circumstances of this case
implicated his privacy rights under the Alaska
Constitution.[12] With that assumption, we do not reach
the first question because we conclude that excluding
Jordan's testimony about his mental state regarding the
marijuana's weight was not harmless beyond a reasonable
doubt. Answering the second question, we hold that the
failure to instruct the jury on a contested element of an
offense is structural error.
III.
STANDARDS OF REVIEW
"Whether
a claim has been preserved for appeal"[13] and whether
due process requires a criminal offense to include a mental
state are questions of law we review de novo, adopting
"the rule of law that is the most persuasive in the
light of precedent, reason, and policy."[14]
"Determining the appropriate standard of review is
[also] a question of law that we review de
novo."[15]
IV.
DISCUSSION
The
United States Supreme Court held in Chapman v.
California that even a constitutional error will not
necessitate a new trial if it was "harmless beyond a
reasonable doubt."[16] We have applied
Chapman's harmless error test to certain cases
involving constitutional violations, [17] but in other
cases we have declined to apply harmless error review and,
upon finding error, have simply reversed.[18] This case
requires us to decide whether two errors fall into the first
category or the second: (1) the failure to instruct the jury
on a contested element of a crime and (2) the refusal to
allow the defendant to testify about that contested element.
The
United States Supreme Court refers to the category of errors
not amenable to harmless error review as "structural
defects" that " 'defy analysis by
"harmless-error" standards' because they
'affec[t] the framework within which the trial proceeds,
' and are not 'simply an error in the trial process
itself.' "[19] Structural errors require automatic
reversal and a new trial.[20] In determining whether an
error is structural, the Supreme Court "rest[s] [its]
conclusion... upon the difficulty of assessing the effect of
the error" and considers other factors, including
fundamental fairness and whether harmlessness is irrelevant
under the circumstances.[21]
A.
If Jordan's Constitutional Privacy Rights Are Implicated
By His Marijuana Possession, It Was Error To Give A Jury
Instruction That Omitted A Mental State Element.
The
State argues that the possession offense with which Jordan
was charged imposed strict liability with regard to the
amount: that is, that the defendant need only know that he
possessed marijuana, not that it weighed four ounces or more.
The State argues that the trial court therefore could not
have erred when it prevented Jordan from testifying about his
subjective intent or when it failed to instruct the jury on a
mental state specific to the amount. Although this question
is not clearly before us, [22] we briefly address the
State's argument because the existence of an error is a
prerequisite to deciding if the error was structural.
The
court of appeals agreed with the State that the legislature
did not intend to tie a mental state requirement to the
weight element of the possession offense.[23] But the court
appropriately went on to consider whether this created due
process concerns. The court examined our holdings in
State v. Rice and State v. Hazelwood to
articulate an analytical framework: "First, the fact
that an offense deals with a subject matter that is normally
considered 'regulatory' does not automatically exempt
the government from having to prove a culpable mental
state"; and second, whether due process requires proof
of a mental state depends on a "case-by-case"
examination of the offense, "considering (1) the
severity of the penalty and (2) the fairness or unfairness of
imposing that penalty on people who violate the law
unwittingly."[24] Applying this framework, the court of
appeals concluded that - because Alaska's
"constitutional right of privacy protects an adult's
right to possess ... marijuana in their home for personal
use"[25] - due process "requires the State
to prove that the defendant acted at least negligently
regarding the circumstance that the marijuana weighed four
ounces or more."[26]
We
agree with the court of appeals' analysis and conclusion.
In Hazelwood we discussed liability for
"objective fault crimes, " that is, offenses
"based either on strict liability or negligence"
that "do not require any subjective awareness of
wrongdoing on the defendant's part."[27] We concluded
that criminal responsibility rests ultimately on the
reasonableness of society's "expectation of
individual conformity, " which means that society's
interest in conformity to its regulations "can never
outweigh the individual's interest in freedom from
substantial punishment for a violation he or she could not
reasonably have been expected to avoid."[28]
This
"principle of reasonable deterrence" generally
allows the government to impose strict liability "when
the failure to abide by a rule is inherently
unreasonable."[29] Such situations include, for example:
(1) when "a person's conduct is hedged in by
regulation, such that one may reasonably assume his or her
routine decisions are guided by rules";[30] (2) when
conduct is "malum in se" that is, so
obviously wrong that all reasonable members of society
recognize it as such;[31] and (3) when violations "call
for only a modest fine."[32] The possession of marijuana in
the home in an amount which may or may not be in excess of a
statutory limit - and which if less than the limit is
concededly not a violation of state law - fits none of these
categories. Society cannot reasonably expect the law to deter
people from possessing an amount of marijuana in the home
that a reasonable person would believe was
legal.[33] We therefore agree with the court of
appeals' conclusion that because Alaska's right of
privacy protects some personal possession of marijuana, the
State may not "impose felony penalties ... on people who
honestly and reasonably, but mistakenly, believe that they
possess a permissible amount of marijuana in their home"
without "significantly undercutting]" this
constitutional protection.[34] Assuming that this protection
extended to Jordan's possession of marijuana in his
detached greenhouse, we agree that the State was required to
prove a mental state as to the weight of marijuana in
Jordan's possession.
The
State argues that Hazelwood should not apply because
the law at issue is a "public welfare statute" and
because the legislature intended that there be no mental
state requirement. We disagree. First, marijuana possession
is not what is usually understood as a "public
welfare" offense, "where the penalties are
relatively small and conviction does no great danger to an
offender's reputation."[35] Under the law as it then
existed, Jordan was convicted of a felony and faced a
possible five-year prison sentence, though he was ultimately
sentenced to two years.[36]
Second,
the legislature cannot exempt a statute from due process
analysis simply by demonstrating a clear intent to do away
with a mens rea requirement. In Hazelwood, noting
concern that "even crimes which had traditionally
required proof of criminal intent have been recharacterized
as strict liability crimes, " we rejected an exception
based on clear legislative intent.[37] And "[s]trict
liability cannot be applied simply to expedite punishment
when there is no reasonable expectation of
deterrence."[38]
The
State alternatively asserts that the conduct at issue here
falls into other groupings of possible strict liability
offenses: either that Jordan's marijuana possession was
malum in se ("when the failure to abide by a
rule is inherently unreasonable" such as where "
'awareness of the commission of the act necessarily
carries with it an awareness of wrongdoing' ") or
that it was so "hedged in by regulation... that one may
readily assume his or her routine decisions are guided by
rules."[39] But we do not agree that marijuana
possession necessarily falls into either category. Possession
of marijuana in the home for personal use is constitutionally
protected and cannot be malum in se. And personal
marijuana possession does not occur in a "rule-laden
environment[]" such as a heavily regulated industry, in
which persons "can reasonably be assumed aware of their
governing codes."[40]
Finally,
citing Morgan v. Municipality of Anchorage,
[41]
the State argues that the court of appeals' decision in
this case is inconsistent with its decisions in the analogous
context of drunk driving. Case law holds that drunk driving
offenses involve strict liability with regard to the amount
of alcohol in a defendant's blood;[42] the State
need only prove that a defendant knowingly consumed alcohol
and drove, not that the defendant knew he had consumed more
than the allowable limit.[43]
The
court of appeals addressed the drunk driving standard in
several recent cases.[44] In McCarthy v. State it
explained why the mental state requirements for drunk driving
offenses are consistent with Hazelwood:
"[P]roof that the defendant knowingly drank alcoholic
beverages, coupled with proof that the defendant became
impaired, or that the defendant drank to the point where
their blood alcohol level exceeded the legal limit, is itself
sufficient to meet the minimal due process requirement for
imposing criminal liability."[45] As the court of appeals
recognized in this case, the Rice/'Hazelwood
test is flexible and case-specific and supports a different
result here.[46] The unique circumstances of the privacy
protection for marijuana possession in the home, the
increased safety concerns with drunk driving on public
streets, [47] and the fact that blood alcohol
thresholds are arguably meant to deter driving at any level
of intoxication are sufficient to distinguish drunk driving
from the possession of marijuana.
In sum,
we agree with the court of appeals that when the
defendant's possession of marijuana implicates the
constitutional privacy rights recognized in Ravin,
[48]
the failure to instruct the jury on a mental state related to
the marijuana's amount is error.
B.
Jordan Preserved His Right To Appeal The Jury
Instructions.
Our
standard of review depends on whether Jordan properly
preserved his objection in the trial court.[49] Absent timely
objection, we generally review claims of error for plain
error, requiring an appellant to establish the following: (1)
that there was an error that was not "the result of an
intelligent waiver or a tactical decision not to
object"; (2) that the error was obvious; (3) that the
error "affect[ed] substantial rights, meaning that it
must pertain to the fundamental fairness of the
proceeding"; and (4) that the error was
prejudicial.[50] Here, Jordan did not explicitly request
an instruction requiring the jury to find a culpable mental
state applicable to the marijuana's weight. And in the
court of appeals he advocated "plain error" review,
asserting that the court should address his argument despite
his failure to object to the instructions given.
We
conclude, however, that Jordan's objection was preserved
and that we therefore need not decide whether any error
amounted to plain error. Jordan's trial attorney argued
repeatedly and at length about the legality of the weighing
method used by the police; he argued that it was a "jury
issue" and a "due process issue" relevant to
whether Jordan should have known he was acting illegally.
Opposing the State's request for a protective order,
Jordan's attorney argued that his client's testimony
was "relevant to establish his state of mind at the time
of the possession" and that the protective order
"essentially den[ied]... Jordan a very important
defense, which is actual knowledge of the amount."
During discussions about jury instructions, Jordan's
attorney argued that if Jordan "honestly believed that
this isn't the case, that he possessed more than four
ounces, then it would be a defense." And the prosecutor
countered by advocating strict liability.
Although
Jordan characterizes the error as structural for the first
time on this appeal, his argument presents not a wholly new
issue but rather a different standard of
review.[51] The trial court was made aware of the
alleged error - that the jury was not informed of
Jordan's defense that he reasonably believed he possessed
less than four ounces. We therefore consider Jordan's
structural error arguments de novo rather than under the test
for plain error.
C.
If Jordan's Constitutional Privacy Rights Are Implicated
By His Marijuana Possession, The Failure To Instruct The Jury
On All Contested Elements Of The Charged Offense Violated His
Right To A Jury Trial And Was Structural Error.
Assuming
that Jordan's marijuana possession implicated his
constitutional privacy rights, both the failure to instruct
the jury on a mental state for the amount of marijuana and
the exclusion of Jordan's testimony on that subject
constituted serious violations of his rights to testify and
to present a defense.[52] The superior court's failure to
instruct the jury also infringed on Jordan's right to a
jury trial.[53] We focus today on the jury trial right.
The
United States Supreme Court decided in Neder v. United
States that the erroneous omission of an essential
element from jury instructions is not structural
error.[54]But Alaska's constitutional
protections are not limited by the reach of their federal
counterparts, [55] and we are not bound by Neder.
Jordan urges us to reject that decision's rationale.
1.
Past Alaska cases do not direct a particular result.
In
early cases we highlighted the breadth and importance of the
right to a jury trial and automatically reversed convictions
if the right was violated.[56] We explained that our broad
reading of the jury trial right
is bottomed on our belief that the right to jury trial holds
a central position in the framework of American justice, and
our further belief as to the primacy which must be accorded
the accused's right to a fair trial against
considerations of convenience or expediency to the
state.[57]
On the
other hand, we applied harmless error review when a trial
court failed to grant a requested instruction on
self-defense.[58] And we applied harmless error review to
similar violations in later cases when the defendant's
failure to object at trial required us to review the case for
plain error-a necessary element of which is prejudice, i.e.,
that the error was not harmless beyond a reasonable
doubt.[59]
The
State suggests that our use of the "harmless beyond a
reasonable doubt" test in analogous plain error cases
requires that we treat the error here as a trial error,
subject to the same review. But relying on plain error
precedent alone would prevent us from ever recognizing a
structural error - an error that by definition is not subject
to harmless error review because it affects the entire
framework of the case.[60]
Plain
error cases aside, in other cases we have declined to apply
harmless error review and instead automatically reversed
convictions once we identified an error of constitutional
dimension. In Greenwood v. State we automatically
reversed a conviction after the superior court erroneously
refused to give a jury instruction on the necessity
defense.[61] Reasoning that "[t]he
implausibility of a defendant's story, or any weakness in
the evidence supporting that story, is not a relevant
consideration" for the judge, we held that the jury
should have been given the instruction.[62]
In
Smallwood v. State, a plain error case, the court of
appeals declined to apply harmless error review to an
erroneous instruction on a conclusive
presumption.[63]The court held that "harmless error
principles should not be applied to a jury instruction which
conclusively establishes an essential element of the crime
charged, " because the error "essentially directed
a verdict for the prosecution on one of the essential
elements of the charge" and allowed "the wrong
entity [to] judge[] the defendant guilty."[64] Later
decisions applied this reasoning in non-plain-error cases
involving erroneous presumptions.[65] But where essential
elements of charged offenses have been omitted from jury
instructions, the court of appeals has taken varying
approaches. In Pitka v. State the court
automatically reversed, explaining that "it is
constitutional error not to instruct on an essential element
of a crime 'because it lets [the jury] convict without
finding the defendant guilty of that element.'
"[66] But, in a later case involving an
omitted element, the court of appeals reversed only after
concluding that the error was not harmless.[67]
We
conclude that our case law in this area does not point
definitively to a particular result.
2.
Under Neder v. United States, omitting an essential
element from a jury instruction is not structural error but
rather is subject to harmless error review.
The
trend of federal law is readily discernible: The Supreme
Court has held that the failure to instruct a jury on an
element of a crime is subject to harmless error
review.[68] In Neder v. United States,
involving false statement, fraud, and racketeering charges,
the trial court failed to instruct the jury that the
materiality of the alleged falsehood was a required element
of some of the offenses.[69] The Supreme Court ultimately remanded
for the trial court to decide whether the error was
harmless.[70] Refusing to categorize the omission as
structural error, the Supreme Court reasoned that "an
instruction that omits an element of the offense does not
necessarily render a criminal trial fundamentally
unfair or an unreliable vehicle for determining guilt or
innocence."[71] Pointing to its previous conclusion in
Johnson v. United States-that the failure to
instruct on an element of the offense was not necessarily
prejudicial for purposes of plain error review[72] - the Court
in Neder rejected "the argument that the
omission of an element will always render a trial
unfair."[73] The Court concluded that
"improperly omitting an element from the jury can
'easily be analogized to improperly instructing the jury
on an element of the offense, an error which is subject to
harmless-error analysis.' "[74]
The
Court distinguished Sullivan v. Louisiana, in which
it had held that a defective "reasonable doubt"
instruction amounted to structural error.[75] Unlike the
error in Sullivan, which "vitiate[d]
all the jury's findings, " the omission of
a single element affected only a single
finding.[76] Although the Court noted that "[i]t
would not be illogical to extend the reasoning of
Sullivan ... to a failure to instruct on an element
of the crime, " it concluded that its application of
harmless error review in other contexts mandated that it be
applied as well to the omission of an essential
element.[77]
Justice
Scalia dissented, joined by Justices Souter and Ginsburg. The
dissent reasoned that "[t]he constitutionally required
step that was omitted here is distinctive, in that the basis
for it is precisely that, absent voluntary waiver of the jury
right, the Constitution does not trust judges to make
determinations of criminal guilt., [78] In other
words, applying harmless error in these circumstances simply
compounds the original error:
The Court's decision today is the only instance I know of
(or could conceive of) in which the remedy for a
constitutional violation by a trial judge (making the
determination of criminal guilt reserved to the jury) is a
repetition of the same constitutional violation by the
appellate ...