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Jordan v. State

Supreme Court of Alaska

May 4, 2018

ANTONIO JORDAN, Petitioner,
v.
STATE OF ALASKA, Respondent.

          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 ...

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