GARRY ARCHEY v. STATE OF ALASKA (2010)

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 precedent for any proposition of law.

MEMORANDUM OPINION AND JUDGMENT

Garry R. Archey raises several arguments in appeal of his convictions for controlled substance misconduct:  (1) the prosecutor improperly vouched for a witness at the grand jury;  (2) there was insufficient evidence that he controlled the property containing a methamphetamine lab;  (3) there was insufficient evidence of his possession of acetone;  (4) the trial court allowed improper evidence to be admitted in rebuttal in violation of the discovery rules;  and (5) his sentence is excessive.   We agree that there was insufficient evidence that Archey controlled the property containing the methamphetamine lab.   But we find no other reversible errors in the grand jury, trial, or sentencing proceedings.

Background

The Soldotna Police Department began investigating Lisa Samson and her sister, Joanna Samson-Sills, after they repeatedly purchased Sudafed (an ingredient used in the manufacture of methamphetamine) from pharmacies in the Kenai-Soldotna area.   Investigator Sharon McKim followed Samson to Sills's ¹ cabin, where Samson was arrested on an outstanding warrant.   Sills admitted that she had purchased the Sudafed, explaining that Samson had told her that Archey was using the Sudafed to make methamphetamine.

While the police and Alaska State Troopers were at Sills's cabin, they were approached by Patrick Price, a neighbor.   Price told the officers that Archey had come to his home and asked him to put a padlock on Samson's trailer.

The officers searched Samson's trailer, and discovered various equipment and materials used for manufacturing methamphetamine.   The police also found a black canvas bag in a hole outside the trailer, containing a “mobile meth kit” with additional equipment and materials used for manufacturing methamphetamine.

Archey was tried and convicted of four counts of second-degree misconduct involving a controlled substance-for manufacturing methamphetamine ² and for possessing chemicals listed for manufacture of methamphetamine, including red phosphorous, acetone, and iodine ³ -and one count of fourth-degree misconduct involving a controlled substance for maintaining a structure to manufacture methamphetamine.⁴  Archey was a third felony offender, and the State proved three aggravating factors.   The trial judge sentenced him to 20 years on each of the first four counts and 5 years on the fifth count, all to run concurrently.   Archey now appeals.

The Prosecutor's Comments Did Not Affect the Grand Jury Indictment

Sills testified at the grand jury.   After Sills confirmed that it was difficult to testify against her sister, the prosecutor stated, “But you did talk to the police and you were ․ forthcoming with them and I know you will be with the grand jury as well.”   Archey moved to dismiss the indictment on the grounds that the prosecutor improperly vouched for a grand jury witness.   Judge Suddock rejected this argument and denied the motion.

The Alaska Supreme Court has adopted a rule that forbids vouching by a trial attorney.⁵  Under this rule, “It is improper for a prosecuting attorney to express his personal belief as to the reliability of a witness, whether to bolster the state's case or to discredit the credibility or reliability of defense witnesses.” ⁶

Here, the prosecutor's remarks are situated in a discussion that seems to have either been intended to coax the witness into testifying or to explain the witness's demeanor:

Q: Okay. Ms. Samson, you're not very comfortable being here, are you?

A: No.

Q: And you're here because you were in fact subpoenaed and required to be here, is that correct?

A: Yes.

Q: Okay. And the reason you're not comfortable being here is because you know Lisa Samson don't you?

A: She's my sister.

Q: Okay. And it's difficult to come to court about that, isn't it?

A: Yeah.

Q: Okay. But you did talk to the police and you were ․

A: Yes.

Q: ․  forthcoming with them and I know you will be with the grand jury as well.

A: Yes, I do.

The prosecutor did not tell the grand jury to believe the witness or suggest that she (the prosecution) had personal knowledge of the witness's credibility.

In Darling v. State, the supreme court reviewed a proceeding where the prosecutor stated that the State's witness was “subject to the scrutiny of my office.   I talked to him.” ⁷  The supreme court concluded that the prosecutor's statement did not amount to improper witness vouching.⁸  Similarly, in the present case, the prosecutor's statement that Sills had been “forthcoming” did not appear to be a clear assertion of personal knowledge of the witness's credibility.

We conclude, moreover, that any improper implication in the prosecutor's comments was harmless in the context of this case.   The principal problem with prosecutorial vouching is the introduction into evidence of the unsworn, inadmissible testimony of counsel.⁹  When inadmissible evidence is presented to the grand jury, we first ask “whether the remaining evidence would be legally sufficient to support the indictment,” and second, whether “it appears likely that the improper evidence was the decisive factor in the grand jury's decision to indict.” ¹⁰

At the grand jury proceeding, Samson's stepfather testified that Archey and Samson had been living in a trailer on his property.   Sills testified that Samson asked her to buy Sudafed that Archey would use for manufacturing “crank.”   She said that she observed Samson and Archey purchasing and transporting other supplies and equipment like Coleman fuel, cases of matchbooks, and plastic containers.   Her testimony was corroborated by the pharmacy logs recovered by the troopers.

Officer Aaron Turnage testified that Samson's trailer contained a variety of equipment, supplies, and ingredients consistent with the manufacture of methamphetamine.   Further manufacturing equipment and supplies were found in the black canvas bag recovered from a hole behind the trailer.

This evidence was sufficient to support the charges in the indictment, with the exception of Count 5, which is discussed below.   And considering this entire presentation, there appears to be no reasonable probability that the grand jury's decision would have been different if the prosecutor had refrained from this challenged comment.

There Was Insufficient Evidence to Satisfy the “Crack House Statute”

Count 5 of the indictment charged Archey under AS 11.71.040(a)(5), commonly referred to as the “crack house statute,” for maintaining a dwelling used for keeping or distributing controlled substances.   The trial court denied Archey's motion for a judgment of acquittal at the close of the State's case in chief.   In his appeal, Archey argues that there was insufficient evidence for conviction because the evidence did not show that he owned or controlled Samson's trailer.

The applicable statute makes it a crime to “knowingly keep[ ] or maintain [ ] any store, shop, warehouse, dwelling, building, vehicle, boat, aircraft, or other structure or place that is used for keeping or distributing controlled substances.” ¹¹  Maintaining a building or dwelling requires proof that the defendant actually controlled the premises, as opposed to merely living there.¹²

When a defendant attacks a conviction for sufficiency of the underlying evidence, this court must view the evidence presented in the light most favorable to upholding the jury's verdict.¹³  A motion for judgment of acquittal should be granted only when fair-minded persons would have to agree that the State failed to carry its burden of proof beyond a reasonable doubt-otherwise, the motion should be denied.¹⁴

The testimony at trial showed that the trailer belonged to Samson and that the property was owned by Samson's mother and stepfather.   The State relies on the evidence that Archey took a padlock to Price's house after Samson was arrested and asked Price to put the padlock on Samson's trailer.   But other than arguing that Archey lived at the trailer and that he gave Price the padlock, the prosecutor did not argue that Archey actually controlled the trailer.

There was testimony to support the conclusion that Archey lived at the trailer and that he kept some belongings at the trailer.   But there was no evidence that Archey exercised control over the trailer, other than the fact that he asked Price to put a lock on it.   Rather, all of the testimony was consistent with Archey being a live-in boyfriend.   This evidence was insufficient for his conviction under AS 11.71.040(a)(5).

There Was Sufficient Evidence of the Possession of Acetone

In Count 3, Archey was charged and convicted of possession of acetone, a listed chemical, with the intent to manufacture methamphetamine.¹⁵  At trial, Archey moved for acquittal of the charge on the ground that there was no evidence that the acetone container found by the troopers actually contained acetone.   The trial court denied Archey's motion, explaining that reasonable jurors could conclude that the container contained what it proclaimed on its label:  acetone.

In his appeal, Archey again argues that the State offered no evidence that the contents of the container were acetone.   Archey argues that the only evidence presented on the issue was a photograph exhibit showing a can labeled “acetone.”

The identity of a controlled substance may generally be established by circumstantial evidence.¹⁶  In this case, there was considerable circumstantial evidence that Archey actually possessed acetone.

Trooper Thad Hamilton testified that he discovered a black bag in a hole on the property near the trailer.   In this bag, Hamilton found stained funnels, a funnel with residue, Coleman fuel, drain cleaner, rubbing alcohol, an eye drop bottle, a small pill container wrapped in duct tape, and the bottle marked “acetone.”   Officer Turnage also testified that the bag contained various equipment and materials used to manufacture methamphetamine, including the can marked “acetone.”

Criminologist Jack Hurd and Officer Turnage put all of the above materials into context by explaining in detail how methamphetamine is manufactured.   Turnage explained that the manufacturing process requires organic solvents such as acetone.   Accordingly, the relevance of the acetone can was explained to the jury:  acetone is used as an organic solvent and the can was found with other materials commonly used to manufacture methamphetamine.   Reasonable jurors could have concluded that the container marked “acetone” actually contained acetone because it was found in a bag along with various other materials and equipment used to manufacture methamphetamine.

The Court Had Discretion to Admit the State's Rebuttal Evidence

Archey argues that the trial court abused its discretion in admitting evidence in the State's rebuttal case of telephone calls he made to his son from jail.   Archey also argues that the State violated the discovery rules by failing to disclose these recorded telephone calls before trial.

At trial, Samson testified that while Archey was in jail, she received a call from a friend of Archey's, Gordon Pentecost, telling her to move the bag that contained the “mobile meth kit.”   This evidence suggested that the bag was Archey's and that he wanted it hidden.

Archey's defense was that the methamphetamine lab belonged to Sills.   Archey presented testimony that he was in jail from July 18, 2006 through July 28, 2006, and that prisoners were not able to place calls to cellular phones.   This evidence suggested that he could not have made the call asking Pentecost to tell Samson to move the bag.

After the defense rested its case, the State used a warrant to obtain taped phone calls made by Archey from the jail, in an attempt to find evidence that Archey called Pentecost.   Although the State was unable to find any evidence of a call to Pentecost, the State did discover calls that Archey made to his son.   On the tapes, Archey's son mentioned that the police had found the black bag, and Archey responded that someone should tell Sills to stop talking to the police.   This evidence suggested that Archey knew about the bag, and that he blamed Sills for its discovery.

The prosecutor requested that she be permitted to introduce the relevant portions of the recordings in her rebuttal.   Defense counsel argued that the recordings constituted a discovery violation and should be excluded because they would prejudice his defense.   The trial court found that there was no discovery violation because the recordings were newly discovered evidence that responded to evidence presented in the defendant's case, and that the recordings did not significantly prejudice Archey's case because the calls were consistent with the State's theory throughout the trial.

In his appeal, Archey argues that the recordings were not proper rebuttal evidence.   After a defendant's case has ended, the State is generally “confined to rebutting evidence;” however, the trial judge has the authority “for good reason and in furtherance of justice” to permit the State to offer new evidence to support its case-in-chief.¹⁷  The trial judge is required to “exercise reasonable control over the ․ order of ․ presenting evidence so as to ․ make the ․ presentation effective for the ascertainment of the truth.” ¹⁸  Thus, the trial judge has considerable discretion in determining the permissible scope of the State's rebuttal case.¹⁹

The trial judge did not abuse that discretion here.   Archey's defense suggested that Sills owned the black bag and that he did not make any phone calls from jail asking Samson to move it.   The State's rebuttal evidence indicated that Archey did make a phone call from jail suggesting that he knew about the black bag.   This newly discovered evidence fell well within the judge's authority to allow new evidence to support the State's case-in-chief “for good reason” and to make the “presentation effective for the ascertainment of the truth.”

Archey also argues that the State violated its obligation for pre-trial discovery by failing to disclose the recordings of phone calls between Archey and his son.   The State's discovery obligation applies to information in the possession of the prosecutor, the prosecutor's staff, “any others who have participated in the investigation or evaluation of the case and who regularly report or with reference to the particular case have reported to the prosecuting attorney's office.” ²⁰  Archey argues that Wildwood Correctional Center records all non-legal calls placed by inmates, that officers routinely monitor the recordings to make sure the inmates are not violating the law, and that correctional officers are required to report evidence of criminal activity.

But there is no evidence that Wildwood staff participated in Archey's prosecution in any way prior to the prosecutor's mid-trial request for the recordings of inmate calls.   So Archey has not established the necessary condition that Wildwood had in some way participated in his investigation or had earlier reported phone calls to the prosecutor's office.   In the absence of a discovery violation, Archey has not established that the superior court should have ordered exclusion of this evidence or declared a mistrial.²¹

The Sentence Is Not Excessive

Archey was convicted of four class A felonies and one class C felony.   Archey was a third felony offender, and was thus subject to a presumptive range of 15 to 20 years on the class A felonies and 3 to 5 years on the class C conviction.²²  Superior Court Judge Anna Moran found three aggravating factors:  that Archey's criminal history included three or more prior felony convictions,²³ that his criminal history included convictions for similar crimes,²⁴ and that his criminal history included five or more misdemeanors.²⁵

Judge Moran also found that Archey showed no hope for rehabilitation, explaining that Archey admitted to a serious drug problem, that he had previously been unsuccessful on probation, and that prior incarceration had failed to deter him from further crimes.   Based on these aggravating factors, Archey's criminal history, his lack of potential for rehabilitation, and the need for deterrence, Judge Moran sentenced Archey to 20 years' imprisonment on each of the four class A felonies and to 5 years on the class C felony, all to run concurrently.   Archey now appeals his sentence, arguing it is excessive.   (Note that we have now vacated the class C felony conviction.)

Archey argues that the trial court gave disproportionate weight to its finding that Archey had no hope for rehabilitation.   According to Archey, the trial court's finding was contrary to evidence that Archey had completed a substance abuse program in 1999 and remained clean and without any substance abuse charges until the present offenses.

The presentence report notes that Archey reported using methamphetamine, heroin, and marijuana from 1986 to 1999, and that Archey stated that he had stayed clean since he completed a substance abuse program in Oregon in 1999.   However, the presentence report also explains that in a 2002 forgery case, Archey admitted to investigating officers that he had been using drugs intravenously.   The presentence report also suggests that Archey failed to complete a substance abuse program that was a requirement of his parole.   Thus, Archey's claim that Judge Moran overlooked his successful period of rehabilitation is unfounded.

Archey also points to a case in which this court upheld concurrent sentences of 7 years' imprisonment with 2 years suspended for convictions of misconduct involving a controlled substance in the third degree.²⁶  But that case involved a second felony offender convicted of three Class B felonies, and only one aggravating factor.²⁷  Moreover, when we affirm a sentence on appeal it does not set a ceiling on sentences in similar cases, nor does it necessarily mean that we would not have affirmed a greater sentence.²⁸

In any event, Archey's case is much more serious.   Archey was convicted of four class A felonies.   The presentence report indicates that Archey's criminal history included thirty felony convictions, and numerous misdemeanor convictions and parole violations.   The presentence report also notes that, since 1982, Archey's longest period between release and a new conviction was eleven months.   Archey appears to have previously been sentenced to 126 cumulative years in jail and over 30 years of probation.   We conclude that Archey's sentence was not clearly mistaken.²⁹

Conclusion

Archey has not established that the indictment should have been dismissed, that there was insufficient evidence for his conviction of possessing acetone, that the admission of the tape recordings warranted a mistrial, or that his sentence is excessive.   However, there was insufficient evidence to support Archey's conviction for maintaining a dwelling to store or distribute a controlled substance.   We REVERSE the conviction on Count 5, and AFFIRM the judgment and sentence in all other respects.

FOOTNOTES

FN1. We refer to Joanna Samson-Sills as “Sills” throughout to avoid confusion with Lisa Samson..  FN1. We refer to Joanna Samson-Sills as “Sills” throughout to avoid confusion with Lisa Samson.

FN2. AS 11.71.020(a)(2)(A)..  FN2. AS 11.71.020(a)(2)(A).

FN3. AS 11.71.020(a)(4)(A)..  FN3. AS 11.71.020(a)(4)(A).

FN4. AS 11.71.040(a)(5)..  FN4. AS 11.71.040(a)(5).

FN5. Alaska R. Prof. Cond. 3.4(e)..  FN5. Alaska R. Prof. Cond. 3.4(e).

FN6. Darling v. State, 520 P.2d 793, 794 (Alaska 1974)..  FN6. Darling v. State, 520 P.2d 793, 794 (Alaska 1974).

FN7. Id..  FN7. Id.

FN8. Id..  FN8. Id.

FN9. Id..  FN9. Id.

FN10. Stern v. State, 827 P.2d 442, 445-46 (Alaska App.1992) (citations omitted)..  FN10. Stern v. State, 827 P.2d 442, 445-46 (Alaska App.1992) (citations omitted).

FN11. AS 11.71.040(a)(5)..  FN11. AS 11.71.040(a)(5).

FN12. Collins v. State, 977 P.2d 741, 749 (Alaska App.1999) (Mannheimer, J., concurring) (reversing conviction because State offered no proof that defendant controlled motel room)..  FN12. Collins v. State, 977 P.2d 741, 749 (Alaska App.1999) (Mannheimer, J., concurring) (reversing conviction because State offered no proof that defendant controlled motel room).

FN13. Collins, 977 P.2d at 747..  FN13. Collins, 977 P.2d at 747.

FN14. Gipson v. State, 609 P.2d 1038, 1040 (Alaska 1980)..  FN14. Gipson v. State, 609 P.2d 1038, 1040 (Alaska 1980).

FN15. See AS 11.71.020(a)(4)(A)..  FN15. See AS 11.71.020(a)(4)(A).

FN16. Howard v. State, 496 P.2d 657, 660-61 (Alaska 1972)..  FN16. Howard v. State, 496 P.2d 657, 660-61 (Alaska 1972).

FN17. Alaska R.Crim. P. 27(a)(3)..  FN17. Alaska R.Crim. P. 27(a)(3).

FN18. A.R.E. 611(a)..  FN18. A.R.E. 611(a).

FN19. See Am. Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1339-40 (Alaska 1982)..  FN19. See Am. Nat'l Watermattress Corp. v. Manville, 642 P.2d 1330, 1339-40 (Alaska 1982).

FN20. Alaska R.Crim. P. 16(b)(4)(ii) (emphasis added)..  FN20. Alaska R.Crim. P. 16(b)(4)(ii) (emphasis added).

FN21. See State v. Clark, 568 P.2d 406, 408 (Alaska 1977) (holding that mistrial not warranted for failure of the prosecution to provide in-depth investigation of aliases used by an informant);  Butler v. State, Memorandum Opinion and Judgment No. 5399 at 18 (Alaska App., Nov. 12, 2008), 2008 WL 4890238 at *10 (explaining that mid-trial disclosure of 911 dispatch logs was not an obvious violation of Criminal Rule 16(b)(4)(ii))..  FN21. See State v. Clark, 568 P.2d 406, 408 (Alaska 1977) (holding that mistrial not warranted for failure of the prosecution to provide in-depth investigation of aliases used by an informant);  Butler v. State, Memorandum Opinion and Judgment No. 5399 at 18 (Alaska App., Nov. 12, 2008), 2008 WL 4890238 at *10 (explaining that mid-trial disclosure of 911 dispatch logs was not an obvious violation of Criminal Rule 16(b)(4)(ii)).

FN22. AS 12.55.125(c)(4);  AS 12.55.125(e)(3)..  FN22. AS 12.55.125(c)(4);  AS 12.55.125(e)(3).

FN23. AS 12.55.155(c)(15)..  FN23. AS 12.55.155(c)(15).

FN24. AS 12.55.155(c)(21)..  FN24. AS 12.55.155(c)(21).

FN25. AS 12.55.155(c)(31)..  FN25. AS 12.55.155(c)(31).

FN26. D'Apice v. State, Alaska App. Memorandum Opinion and Judgment No. 2958 (July 27, 1994), 1994 WL 16196511..  FN26. D'Apice v. State, Alaska App. Memorandum Opinion and Judgment No. 2958 (July 27, 1994), 1994 WL 16196511.

FN27. Id. at 1, 1994 WL 16196511 at *1..  FN27. Id. at 1, 1994 WL 16196511 at *1.

FN28. Hurn v. State, 872 P.2d 189, 199-200 (Alaska App.1994)..  FN28. Hurn v. State, 872 P.2d 189, 199-200 (Alaska App.1994).

FN29. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974)..  FN29. See McClain v. State, 519 P.2d 811, 813-14 (Alaska 1974).

BOLGER, Judge.