Opinion
Court of Appeals Nos. A-9557, A-9566.
March 5, 2008.
Appeal from the Superior Court, Second Judicial District, Kotzebue, Ben Esch, Judge, Trial Court Nos. 2KB-04-436 CR, 2KB-04-438 CR.
Beth G.L. Trimmer, Assistant Public Advocate, Palmer, and Joshua P. Fink, Public Advocate, Anchorage, for the Appellant Leo Ferreira. George J. Dozier Jr., Eagle River, for the Appellant Cheryl Ferreira. Shannon Eddy, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Talis J. Colberg, Attorney General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer and Stewart, Judges.
MEMORANDUM OPINION AND JUDGMENT
Leo Ferreira Jr. and Cheryl Ferreira, husband and wife, were co-defendants in a joint trial in which they were each convicted of sixteen counts of bootlegging. They raise similar issues on appeal: that some of the charges the State filed against them were the product of prosecutorial vindictiveness; that the State violated the Fifth Amendment rights of witnesses; and that the superior court erred in giving a jury instruction that created an unlawful presumption. In addition, Leo Ferreira argues that the State presented insufficient evidence to support his convictions. We affirm the convictions.
AS 04.11.010(a), (c).
Factual and procedural background
On July 2, 2004, a grand jury indicted Leo Ferreira on five counts of selling alcohol without a license in a local option area. The grand jury indicted Cheryl Ferreira on four counts.
AS 04.11.010(a), (c). See AS 04.16.200(b).
The State sent an e-mail to Cheryl Ferreira's counsel offering to enter into plea negotiations. After Cheryl Ferreira indicated that she wanted to negotiate a plea bargain, the State told Ferreira that it had documentary evidence that would support additional counts, an d that indicated Johnnie Ferreira (Leo and Cheryl Ferreira's daughter) and Mahlon Ferreira (Leo Ferreira's son) were also involved in the bootlegging. The prosecutor asserted that if the State went back to the grand jury, it would probably obtain indictments on additional charges, including indictments against the (adult) Ferreira children. Apparently, the State obtained the documentary evidence, which consisted of alcohol order forms and air waybills showing additional bootlegging activity, as early as August 9, 2004. The parties did not reach a plea agreement.
In January 2005, the State, which had not yet attempted to obtain additional grand jury indictments, filed an application with the court to introduce the alcohol order forms and air waybills it had discovered after the initial indictments as prior bad acts evidence under Evidence Rule 404(b). Superior Court Judge Pro Tem Jane F. Kauvar entered an order permitting the State to use in its case in chief the alcohol order forms and air waybills that related to Leo and Cheryl Ferreira for the period of February 2004 through June 2004. But Judge Kauvar ruled that documents that did not relate to Leo and Cheryl Ferreira or that fell outside of that time period would not be admissible.
The parties selected a jury on January 10 and 11, 2005. During jury selection, Bonnie E. Nauska, Leo Ferreira's former wife and Mahlon Ferreira's mother, stated that she had information about the case. She was excused as a prospective juror. Another prospective juror, Daniel Henry Jr., stated that he had purchased alcohol from the defendants. He was also excused as a juror.
On January 11, 2005, the state troopers interviewed Nauska, Henry, and Lowanna D. Goodwin, whom the troopers discovered as a result of the interviews with Nauska and Henry.
On January 13, 2005, at a hearing conducted by Superior Court Judge Ben Esch, the State informed the defendants and the court that the State intended to return to grand jury to obtain additional indictments.
On January 14, 2005, the State presented the original counts to the grand jury, as well as the additional counts based upon the alcohol order forms, air waybills, and testimony from the additional witnesses. The grand jury indicted Leo Ferreira for sixteen counts of bootlegging, Cheryl Ferreira for sixteen counts of bootlegging, Johnnie Ferreira for thirteen counts of bootlegging, and Mahlon Ferreira for thirteen counts of bootlegging.
On March 24, 2005, Leo Ferreira filed a motion to dismiss the additional counts against him based on vindictive prosecution. Cheryl Ferreira joined in the motion. They argued that the State filed the additional charges to retaliate against them for exercising their constitutional right to a jury trial and their right to object to the admission of the additional documentary evidence, which Judge Kauvar had ruled the State could not use in its case in chief.
Judge Esch denied the motion. Judge Esch found that information came to light during jury selection that prompted the State to further investigate the Ferreiras. He found that this investigation gave rise to the additional evidence that the State presented to the grand jury. Judge Esch concluded that the State had shown that its decision to indict on additional charges was not retaliation against the defendants for exercising their rights.
Why we uphold Judge Esch's decision to deny the motion to dismiss based on prosecutorial vindictiveness
On appeal, the Ferreiras renew their claim that the timing of the State's decision to obtain new indictments against them and their children establishes that the State was retaliating against them for asserting their right to a jury trial and for opposing the State's effort to introduce the additional documentary evidence under Rule 404(b). The Ferreiras observe that the State had this additional documentary evidence as early as August 2004, but did not seek new indictments until January 2005, after the plea negotiations with Cheryl Ferreira had failed.
Due process prohibits both actual and apparent prosecutorial vindictiveness ( i.e., the State is prohibited from retaliating against a defendant for exercising a constitutional or statutory right and from creating the "reasonable and realistic potential for a chilling effect on the assertion of rights by the accused and others similarly situated"). But the State is entitled to file additional charges based upon the discovery of new evidence of additional crimes. In the present case, Judge Esch found that the State established that the additional charges that it filed arose "from the discovery of new evidence of direct sales of alcohol" — specifically, the information disclosed during jury voir dire. Although Judge Esch acknowledged that the State had documentary evidence of substantial purchases of alcohol prior to the voir dire, he concluded that this documentary evidence was "substantially different" from the testimony of individuals who had purchased alcohol directly from the defendants. He found that the State's showing "negat[ed] any appearance of vindictiveness as well as the possibility of actual vindictiveness." Judge Esch's findings are supported by the record. We conclude that Judge Esch did not err in denying the Ferreiras' motion to dismiss.
Atchak v. State, 640 P .2d 135, 147 n. 23 (A laska A pp. 1981). Accord Dyer v. State, 666 P.2d 438, 442 (Alaska App. 1983) (citing U.S. Const. amend. XIV, § 1; Alaska Const. art. 1, § 7).
Atchak, 640 P.2d at 148 n. 25.
Why we conclude that the Ferreiras did not have standing to assert that the State violated the Fifth Amendment rights of State witnesses
Cheryl Ferreira argues that the State violated Anthony B. Coppock's Fifth Amendment rights by calling him as a witness knowing he would be cross-examined about his own possible bootlegging activity. Cheryl Ferreira argues that she has standing to assert Coppock's Fifth Amendment rights and that the violations of Coppock's rights require reversal of her convictions.
Cheryl Ferreira relies on Giel v. State to argue that she has standing to assert Coppock's Fifth Amendment rights. In Giel, we held that a defendant may have standing to complain of the violation of a co-defendant's Fifth Amendment rights if the defendant can show that the police deliberately violated the co-defendant's rights, or that the police otherwise engaged in gross or shocking misconduct that resulted in a violation of the co-defendant's rights.
681 P.2d 1364 (Alaska App. 1984).
Id. at 1366.
Cheryl Ferreira's argument actually hinges on a proposed expansion of our holding in Giel. The Giel opinion dealt with alleged police misconduct; Giel involved a purported Fifth Amendment violation perpetrated by police officers outside of court. Ferreira does not claim that the police violated Coppock's Fifth Amendment rights in any fashion. Rather, she argues that Coppock's Fifth Amendment rights were violated by the prosecutor during the trial proceedings — because the prosecutor called Coppock as a witness, knowing that Coppock would likely be cross-examined by the defense attorneys about his own possible bootlegging and unlawful purchases of bootlegged alcoholic beverages.
Id. at 1365-66.
Under Alaska law, it is improper for an attorney to call a witness to testify at a jury trial if the attorney knows that this witness will assert a valid privilege to refuse to answer questions. But no such problem arose in Cheryl Ferreira's case — because Coppock never asserted his Fifth Amendment privilege during his testimony. Instead, he answered all the questions posed to him.
Williams v. State, 600 P.2d 1092, 1093 (Alaska 1979); Copeland v. State, 70 P.3d 1118, 1125 (Alaska App. 2003).
Coppock's decision to answer questions — rather than asserting his potential Fifth Amendment privilege to decline to answer these questions — means that Cheryl Ferreira has no claim for relief under Giel. A defendant has no claim for relief under Giel unless the defendant can show that a co-defendant's Fifth Amendment rights were in fact violated. It is no violation of the Fifth Amendment for a person to be summoned or subpoenaed to testify at a judicial proceeding, and there to be subjected to questioning about matters that might potentially incriminate the person.
As we have repeatedly explained, a witness who is subpoenaed to testify at a judicial proceeding is not "coerced" to give incriminating testimony simply because the witness is under compulsion to attend the proceeding and answer questions. Even when the witness believes that the answer to a question would be potentially incriminating, there is no violation of the Fifth Amendment if the witness answers the question.
State v. Rivers, 146 P.3d 999, 1002-03 (lead opinion), 1004 (Mannheimer, J., concurring) (Alaska App. 2006); Beaver v. State, 933 P.2d 1178, 1181 (Alaska App. 1997); Williams v. State, 928 P.2d 600, 606-07 (Alaska App. 1996).
As the United States Supreme Court clarified in Garner v. United States, "in the ordinary case, if a witness under compulsion to testify makes disclosures instead of claiming the privilege, the government has not 'compelled' him to incriminate himself." If the witness wishes to decline to answer, the witness must affirmatively assert the privilege against self-incrimination, or it is lost. The witness's Fifth Amendment rights would be violated only if the trial judge erroneously overruled a valid claim of privilege, or if the law imposed a penalty on the witness simply for the act of asserting the privilege.
424 U.S. 648, 96 S. Ct. 1178, 47 L. Ed. 2d 370 (1976).
Id. at 654, 96 S. Ct. at 1182 (footnote omitted), quoted in Williams, 928 P.2d at 606-07.
Minnesota v. Murphy, 465 U.S. 420, 436-39, 104 S. Ct. 1136, 1147-48, 79 L. Ed. 2d 409 (1984); Garrity v. New Jersey, 385 U.S. 493, 87 S. Ct. 616, 17 L. Ed. 2d 562 (1967).
The prosecutor's decision to subpoena Coppock and call him to the stand at the Ferreiras' trial was thus not a violation of Coppock's Fifth Amendment rights. Therefore, even if Cheryl Ferreira could vicariously assert a violation of Coppock's rights, she would have no claim here.
Leo Ferreira claims that the police violated the Fifth Amendment rights of George K. Gallahorn, another government witness, because the police continued to question Gallahorn after he invoked his right to silence two or three times. Relying on Giel, Leo Ferreira argues he has standing to assert this violation of Gallahorn's Miranda rights.
But Judge Esch found that the police did not violate Gallahorn's Miranda rights. He found that, because Gallahorn was not in custody when the police questioned him, the police were not obliged to immediately break off their questioning when Gallahorn asserted that he did not wish to answer. We agree with Judge Esch on this matter. Thus, Leo Ferreira has not shown that the police violated Gallahorn's Fifth Amendment rights — much less that the police violated Gallahorn's rights in such a deliberate or shocking manner that Leo Ferreira would have standing under Giel to vicariously assert Gallahorn's rights.
See State v. Garrison, 128 P.3d 741, 747 (Alaska App. 2006).
Leo Ferreira also argues that Judge Esch erred by not advising Gallahorn of his Fifth Amendment rights before Gallahorn testified at the Ferreiras' trial. Leo Ferreira points out that Gallahorn was asked about his purchase of bootlegged alcohol. Leo Ferreira asserts that Gallahorn might have asserted his privilege against self-incrimination, rather than answering those questions, if Gallahorn had been explicitly advised of the privilege.
But Leo Ferreira's argument is premised on the assumption that a trial judge is obliged to warn witnesses of their privilege against self-incrimination whenever it appears that the witness might be asked questions that call for a potentially incriminating answer. Ferreira offers no legal authority on this point; he simply offers the conclusory assertion that, under these circumstances, "the trial court ha[s] a duty to inform . . . witnesses of their Fifth Amendment right against self-incrimination."
But as we have just explained, there is no violation of a witness's Fifth Amendment rights if the witness testifies (even under the compulsion of a subpoena) and answers questions without asserting the Fifth Amendment privilege.
Moreover, the law does not require the giving of Miranda warnings (or similar explicit warnings of the right against self-incrimination) to a witness who comes to testify at a public judicial proceeding. In Nicholi v. S tate, the A laska Supreme Court rejected the contention that a criminal suspect is entitled to full Miranda warnings if the suspect is summoned to testify at a coroner's inquest: "Since [the] appellant was not under arrest or in custody or under any type of restraint at the time he made his statement at the coroner's inquest, it was not necessary that he have been advised that if he was indigent and so desired counsel would be furnished for him at state expense."
United States v. Kilgroe, 959 F.2d 802, 804 (9th Cir. 1992) ("the courtroom . . . is not the type of setting that would justify invoking Miranda' s prophylactic rule. The Miranda Court itself recognized that 'the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.'") (quoting Miranda v. Arizona, 384 U.S. 436, 461, 86 S. Ct. 1602, 1621, 16 L. Ed. 2d 694 (1966)); State v. Austin, 87 S.W.3d 447, 479 (Tenn. 2002). See also 1 Kenneth S. Broun et al., McCormick on Evidence § 131, at 556-57 (6th ed. 2006).
451 P.2d 351 (Alaska 1969).
Id. at 356.
For these reasons, we reject Leo Ferreira's argument that Judge Esch was required to advise Gallahorn of his privilege against self-incrimination.
Why we conclude that Jury Instruction No. 24 did not unlawfully shift the burden of proof to the defendants
A laska Statute 04 .11.010(c) creates a presumption that if a person possesses, sends, transports, or brings more than a certain amount of alcoholic beverages into a local option community, that person did so with the intent to sell the alcoholic beverages. Jury Instruction No. 24 states:
In a prosecution for possession of alcoholic beverages for sale, if the evidence shows beyond a reasonable doubt that a person possessed more than twelve liters of distilled spirits in an area where the sale of alcoholic beverages is restricted or prohibited under a local option restriction the jury may, but is not required to, conclude that the person possessed the alcoholic beverage for sale.
The Ferreiras assert that Jury Instruction No. 24 improperly shifted the burden of proof from the State to the defendants. Evidence Rule 303(a)(1) states that when a statute provides for "a presumption directed against the accused [it] imposes no burden of going forward with evidence to rebut or meet the presumption and does not shift to the accused the burden of proof. . . ." The rule allows the court to "instruct the jury that it may, but is not required to, infer the existence of the presumed fact from the proved fact, but no mention of the word 'presumption' shall be made to the jury."
The Ferreiras did not object to the instruction and therefore must establish plain error. In any event, the instruction does not establish a presumption. It merely informed the jury, consistent with Evidence Rule 303(a)(1), that it "may, but is not required to, conclude that the person possessed the alcoholic beverage for sale." We find no error.
The State presented sufficient evidence to support Leo Ferreira's convictions
Leo Ferreira argues that the State presented insufficient evidence to convict him. When this court considers a claim that the State presented insufficient evidence to support a conviction, we view the evidence in the light most favorable to the State. We are to determine whether the State presented adequate relevant evidence to support a conclusion by a reasonable jury that there was no reasonable doubt as to the defendant's guilt. In arguing that there was insufficient evidence to convict him, Leo Ferreira argues that several of the witnesses called by the State testified either that they did not buy alcohol from the Ferreiras or that they did not recall whether they had purchased alcohol from the Ferreiras. But as the State points out, all of these witnesses were impeached with their prior statements about their bootlegging interactions with the Ferreiras.
See, e.g., Ross v. State, 586 P.2d 616, 618 (Alaska 1978); Beck v. State, 408 P.2d 996, 997 (Alaska 1965); Stevens v. Matanuska-Susitna Borough, 146 P.3d 3, 13 (Alaska App. 2006).
Ross, 586 P.2d at 618.
In addition, Billy D. Jones testified that he ordered alcohol for the Ferreiras, and in return they gave him two bottles. Anthony Coppock testified about the high amount of traffic that went to and from the Ferreiras' residence. He also testified that he purchased alcohol from them. Lastly, the State introduced documentary evidence showing the Ferreiras' purchases of alcoholic beverages. We accordingly conclude that, viewed in the light most favorable to the State, the State presented sufficient evidence to support Leo Ferreira's conviction.
The convictions are AFFIRMED.