Opinion
Court of Appeals No. A-12624 No. 6844
12-26-2019
REINA A. VALLEY, Appellant, v. STATE OF ALASKA, Appellee.
Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee.
NOTICE Memorandum decisions of this Court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding authority for any proposition of law, although it may be cited for whatever persuasive value it may have. See McCoy v . State , 80 P.3d 757, 764 (Alaska App. 2002). Trial Court No. 3PA-14-01353 CR
MEMORANDUM OPINION
Appeal from the Superior Court, Third Judicial District, Palmer, Vanessa H. White, Judge. Appearances: Marilyn J. Kamm, Attorney at Law, Anchorage, under contract with the Office of Public Advocacy, for the Appellant. Patricia L. Haines, Assistant Attorney General, Office of Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney General, Juneau, for the Appellee. Before: Allard, Chief Judge, Harbison, Judge, and Mannheimer, Senior Judge. Judge ALLARD.
Sitting by assignment made pursuant to Article IV, Section 11 of the Alaska Constitution and Administrative Rule 23(a).
Reina A. Valley smuggled twelve morphine pills into the Goose Creek Correctional Center and gave them to her son, who was incarcerated there. Based on this conduct, Valley was convicted of three crimes: second-degree controlled substance misconduct (possession of morphine with intent to distribute), fourth-degree controlled substance misconduct (simple possession of morphine), and first-degree promoting contraband (smuggling morphine into a correctional facility). Based on these three convictions, Valley received a composite sentence of 10 years and 2 days to serve.
Former AS 11.71.020(a)(1) (2014), former AS 11.71.040(a)(3)(A)(i) (2014), and AS 11.56.375(a)(3), respectively.
Valley now appeals her convictions, arguing the trial judge should have declared a mistrial because of evidence that was elicited when the prosecutor cross-examined her. In the alternative, Valley argues she is entitled to a resentencing because the judge failed to merge her two convictions for controlled substance misconduct. She also argues that the judge committed plain error by not sua sponte finding two mitigating factors that Valley's attorney had not proposed — the mitigator for small quantities of a controlled substance and the mitigator for conduct among the least serious within the definition of the offense.
AS 12.55.155(d)(13) and (d)(9), respectively.
For the reasons explained in this opinion, we affirm the superior court's denial of Valley's motion for a mistrial, but we agree with Valley that she should have received one merged conviction for second-degree controlled substance misconduct. For this reason, Valley must be resentenced. And because she must be resentenced, we need not reach Valley's other sentencing arguments.
Background facts and proceedings
At trial, Valley testified that she did not bring the morphine pills to her son, even though she had previously confessed her guilt to an Alaska State Trooper. On cross-examination, the prosecutor asked Valley why she told the trooper that she had brought the pills to her son. Valley responded that she confessed only after the trooper told her that her son had already admitted that Valley had brought him the pills. Valley testified that, upon hearing this, she told the trooper, "[O]kay, I did it." But Valley asserted that she said this to protect her son, and that she was not really confessing to any crime. Valley specifically suggested that the jury should hear the audio recording of her interview with the trooper.
The prosecutor then stated that he would, in fact, play the recording of the interview (because, as the prosecutor later argued, the recording would impeach Valley's testimony). Valley's attorney did not object to the initial playing of the recording, and it was played for the jury. In the recording, Valley confessed to smuggling drugs into the prison after the trooper falsely told her that there was a video of her passing the pills to her son, and after the trooper told Valley that her son had admitted that she brought him the pills.
After playing this recording, the prosecutor further cross-examined Valley about her statements in the recording, and Valley asked to hear the recording again. But at that point, Valley's attorney requested a mistrial.
The defense attorney pointed out that the trooper's statement about the purported incriminating video was demonstrably false. And with regard to the trooper's statement that Valley's son had admitted that Valley brought him the pills, the defense attorney argued that the trooper's statement was testimonial hearsay, and that the admission of this statement therefore violated Valley's rights under the confrontation clause.
The trial judge denied Valley's motion for a mistrial. With regard to the video purportedly showing Valley handing something to her son, both the trooper and a witness from the Department of Corrections had already told the jury that no such video existed. With regard to the hearsay confession made by Valley's son, the judge acknowledged that the trooper's statement about the son's admission would have been testimonial hearsay if it had been offered for the truth of the matter asserted. But the judge concluded that, given the content of the prosecutor's cross-examination of Valley, the trooper's statement had been offered for a different purpose: to show the statement's effect on Valley (i.e., the fact that it elicited Valley's own confession).
To clarify this matter for the jury, the judge gave a curative instruction. This instruction told the jurors that, because Valley's son was not going to testify at her trial, "any statements [the son] may or may not have made out of court are not admissible for the truth of the matter . . . asserted." Rather, the son's admission was admissible "only . . . for its effect on Ms. Valley."
As explained above, Valley was convicted of two separate counts of controlled substance misconduct, both based on her single delivery of drugs to her son.
Why we affirm the trial court's denial of Valley's motion for a mistrial
On appeal, Valley renews her argument that the trial judge should have declared a mistrial because the prosecutor played the recording of Valley's interview with the trooper. We find no merit to this claim.
We note first that it was Valley, not the prosecutor, who first informed the jury about the recording of her interview with the trooper. Indeed, it was Valley who initially urged the prosecutor to play the recording for the jurors, and the recording was initially played without objection from the defense attorney.
In any event, we conclude that the trial judge responded appropriately to the defense attorney's subsequent objection by instructing the jury that the statements were being offered by the State only to show the effect the statements made on Valley, not for the truth of the matter asserted. And because Valley's son's purported out-of-court statement was not offered for a hearsay purpose, the introduction of this evidence did not violate the confrontation clause. As the United States Supreme Court explained in Crawford v. Washington, "[t]he [Confrontation] Clause . . . does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."
See, e.g., Christian v. State, 276 P.3d 479, 488 (Alaska App. 2012) (where a caller's statements were admissible when introduced to provide context for the statements the defendant made during the phone call, not for hearsay purposes); Estes v. State, 249 P.3d 313, 315-16 (Alaska App. 2011) (where recorded statements were admissible when introduced for non-hearsay purpose); Evans v. State, 23 P.3d 650, 652-53 (Alaska App. 2001) (same); Linne v. State, 674 P.2d 1345, 1356 n.8 (Alaska App. 1983) (same).
See Christian, 276 P.3d at 488; Estes, 249 P.3d at 315-16; Evans, 23 P.3d at 652-53.
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004).
And with regard to the trooper's false statement that Valley's transfer of the pills to her son had been captured on video, this matter had already been clarified for the jurors: earlier in the trial, both the trooper himself and a witness from the Department of Corrections had acknowledged that there was no such video.
Given the nature of the curative instruction and the prior testimony about the video, we conclude that the trial judge did not abuse her discretion when she denied Valley's motion for a mistrial.
See Roussel v. State, 115 P.3d 581, 585 (Alaska App. 2005).
Why Valley's two convictions for controlled substance misconduct must merge
As we already noted, Valley was convicted of both second-degree controlled substance misconduct (possession of morphine with intent to deliver) and fourth-degree controlled substance misconduct (simple possession of morphine). Both convictions were based on the same twelve pills of morphine.
On appeal, the State concedes that it was error for the superior court to enter two separate convictions for controlled substance misconduct under these circumstances. We must independently evaluate any concession of error by the State in a criminal case, and here we conclude that the State's concession is well-founded. Under Alaska law, it is not permissible to impose separate convictions for possessing a drug with intent to sell and simple possession of the same drug. We therefore direct the superior court to enter one merged conviction for Valley's higher degree of criminal conduct (second-degree controlled substance misconduct) and to resentence Valley.
Marks v. State, 496 P.2d 66, 67-68 (Alaska 1972).
McGowen v. State, 359 P.3d 988, 989-90 (Alaska App. 2015).
Because Valley must be resentenced, we need not resolve Valley's remaining claims that the superior court committed plain error by not sua sponte finding two mitigating factors — the mitigator for small quantities of a controlled substance and the mitigator for conduct among the least serious within the definition of the offense. Valley may propose these mitigators when her case returns to the superior court for resentencing.
AS 12.55.155(d)(13) and (d)(9), respectively.
Conclusion
Valley's sentence is VACATED. The superior court is directed to merge Valley's two convictions for controlled substance misconduct into a single conviction for second-degree controlled substance misconduct and to resentence Valley. The judgment of the superior court is otherwise AFFIRMED.
The superior court shall resentence Valley within 120 days of the issuance of this opinion. This deadline can be extended for good cause by the superior court conditioned upon notice to this Court.
If, following this resentencing, Valley wishes to appeal her sentence, Valley shall file a notice of sentence appeal within 30 days after the superior court distributes its sentencing decision. The proceedings shall then be governed by Alaska Appellate Rules 215(f) through (h).
This Court retains jurisdiction of Valley's case for this purpose.