Opinion
Court of Appeals No. A-10057, No. 5485.
June 3, 2009.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Niesje J. Steinkruger and Michael A. MacDonald, Judges, Trial Court No. 4FA-06-3295 Cr.
David D. Reineke, Assistant Public Defender, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant. Eric A. Ringsmuth, 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 Bolger, Judges.
MEMORANDUM OPINION
James S. Howard was indicted on two counts of third-degree controlled substance misconduct for engaging in two sales of methamphetamine, one in February 2006 and the other in July 2006. A jury acquitted Howard of the February sale but found him guilty of the July sale. Howard now appeals his conviction for the July sale.
AS 11.71.030(a)(1).
The sufficiency of the evidence to support Howard's conviction
Howard first asserts that the evidence presented at his trial was legally insufficient to support his conviction.
The primary witness against Howard was a police informant, Alexander Reitan. In his testimony, Reitan described purchasing methamphetamine from Howard (under the supervision of the Alaska State Troopers) in both February and July.
In his brief to this Court, Howard points out that the evidence revealed several potential reasons to distrust Reitan's testimony. Howard's trial attorney alerted the jury to these issues during his cross-examination of Reitan and during his cross-examination of Alaska State Trooper Sergeant Ronald Wall, the officer who supervised Reitan's undercover purchases of the methamphetamine. And we assume that Howard's attorney reiterated these weaknesses in the State's case during his summation to the jury. (We do not know this for certain, because Howard did not designate the final arguments of the parties for transcription.)
But the fact that there were identifiable weaknesses in the State's case, or identifiable reasons for distrusting Reitan's testimony, does not mean that the evidence was insufficient to support Howard's conviction. When a defendant challenges the sufficiency of the trial evidence to support a verdict, we are obliged to view the evidence (and all reasonable inferences that can be drawn from the evidence) in the light most favorable to upholding the verdict. Viewing the evidence presented at Howard's trial in that light, we conclude that the evidence was sufficient to support the jury's conclusion that Howard sold methamphetamine to Reitan in July 2006.
See Simpson v. State, 877 P.2d 1319, 1320 (Alaska App. 1994).
Howard argues that the jury must have doubted Reitan's credibility, because the jury acquitted Howard of the February 2006 sale. Howard then asserts that "no reasonable jury should have convicted [him] of [the July sale] after having acquitted him of [the February sale]."
But the evidence regarding these two sales was distinct. We note, in particular, Sergeant Wall's testimony that the troopers attempted to electronically record both the February sale and the July sale, but the resulting tape of the February sale was mostly inaudible. Howard's jury might reasonably have concluded that the State had satisfied its burden of proof with respect to the July sale (for which the State offered an audible tape), but that the State had failed to meet its burden of proof with respect to the February sale (where the tape was inaudible).
For these reasons, we conclude that the evidence was sufficient to support Howard's conviction.
Howard's jury instruction claim
Howard's other argument on appeal is that the trial judge committed plain error when she failed to instruct the jurors that the testimony of drug-addicted, paid informers is inherently unreliable. In other words, Howard claims that he is entitled to reversal of his conviction because the trial judge failed to give such an instruction, even though Howard's attorney made no request for one.
A judge's act or omission constitutes plain error only if (1) the act or omission actually was error, and (2) the error was so obvious that any competent judge or attorney would have recognized it. This means that when a claim of error is merely debatable — when reasonable judges could disagree as to whether error occurred — there is no plain error. In the context of Howard's particular claim, the judge's failure to give the jury instruction would be plain error only if, under the circumstances of his case, the law clearly required the trial judge to give the instruction.
Bradley v. State, 197 P.3d 209, 213 (Alaska App. 2008); Samples v. Anchorage, 163 P.3d 967, 972 (Alaska App. 2007); Simon v. State, 121 P.3d 815, 820 (Alaska App. 2005).
Cooper v. State, 153 P.3d 371, 373 (Alaska App. 2007).
In his brief to this Court, Howard has identified a few appellate decisions — most notably, United States v. Griffin, 382 F.2d 823, 829 (6th Cir. 1967) — that direct trial judges to instruct jurors that they should view the testimony of drug-addicted, paid informers with distrust. But there is no Alaska appellate decision that requires such an instruction.
Moreover, as this Court noted in Heaps v. State, 30 P.3d 109 (Alaska App. 2001), the trend in Alaska is away from mandatory jury instructions on the credibility of, and the weight to be given, the testimony offered by certain classes of witnesses.
As we explained in Heaps, Alaska Criminal Rule 30(b) formerly required trial judges to give three specified instructions in all criminal cases: (1) that a witness willfully false in one part of their testimony might be distrusted in other parts; (2) that the testimony of an accomplice should be viewed with distrust; and (3) that the government is obliged to prove the defendant's guilt beyond a reasonable doubt. Heaps, 30 P.3d at 115. But in 1975, the Alaska Supreme Court amended the rule so that it no longer requires trial judges to give any particular jury instructions. Rather, Criminal Rule 30(b) simply directs trial judges to "instruct the jury on all matters of law which [the judge] considers necessary for the jury's information in giving their verdict". Alaska Supreme Court Order 222 (effective December 15, 1975); see also Heaps, 30 P.3d at 115.
The mandatory nature of Rule 30(b) was eliminated after the supreme court was forced to overturn a criminal conviction in Anthony v. State, 521 P.2d 486 (Alaska 1974). In Anthony, the trial judge failed to give the mandatory instruction telling the jurors to distrust the testimony of accomplices. The supreme court concluded that it was compelled to reverse Anthony's conviction, even though Anthony's defense attorney never requested the accomplice instruction or called the omission to the judge's attention. Anthony, 521 P.2d at 489-490; see also Heaps, 30 P.3d at 115. Based on the supreme court's amendment of Criminal Rule 30(b) following its decision in Anthony, we concluded in Heaps "that our supreme court disfavors mandatory jury instructions". Id. at 116.
We also noted in Heaps that the existence of mandatory jury instructions opened up the possibility of unfair tactical maneuvering by defense attorneys: a defense attorney might knowingly refrain from alerting the trial judge that a mandatory instruction had been omitted from the instruction packet, thus "sow[ing] the seed of error in the event that the jury's verdict was unfavorable". Id. at 115-16.
In sum, even though some courts from other jurisdictions have held that trial judges should give the kind of jury instruction that Howard suggests, Alaska law does not currently require this type of instruction, and the policy of Alaska law disfavors mandatory instructions. Howard's claim of error is (at best) no more than debatable, and thus it does not qualify as plain error.
There is yet another reason why Howard has failed to show plain error. An error is not "plain" unless it manifestly prejudiced the fairness of the proceedings.
Wolfe v. State, 24 P.3d 1252, 1256 (Alaska App. 2001); see also Marrone v. State, 653 P.2d 672, 675-76 (Alaska App. 1982).
Howard's suggested jury instruction would have told the jurors that they should view Alexander Reitan's testimony with distrust. But as we explained above, the defense attorney's cross-examinations of Reitan and Sergeant Wall revealed several potential reasons to view Reitan's testimony with distrust. Howard has not provided us with a transcript of the final arguments to the jury, but we assume that the defense attorney brought these matters to the jury's attention again when he delivered his summation.
We note, moreover, that the trial judge instructed the jurors that, when they assessed witness credibility and the weight to be given a witness's testimony, they were to consider "any motive of the witness not to tell the truth", "any interest that the witness ha[d] in the outcome of the case", "any bias of the witness", and "the consistency of the witness' [own] testimony and whether it [was] supported or contradicted by other evidence".
Finally, the jury acquitted Howard of the February sale, where there was no audible tape to corroborate Reitan's testimony. The jury's decision strongly suggests that the jurors understood that there were reasons to distrust Reitan's testimony, and that the jurors took these into account during their deliberations.
Thus, Howard has failed to show that the fairness of his trial was manifestly prejudiced by the absence of the suggested jury instruction, and he has therefore failed to establish plain error. Conclusion
The judgement of the superior court is AFFIRMED.