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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Marshall v. State (8/20/2010) sp-6504

Marshall v. State (8/20/2010) sp-6504, 238 P3d 590

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) Supreme Court No. S- 13401
Petitioner, ) Court of Appeals No. A-09721
) Superior Court No. 3AN-03-12471 CR
v. )
Respondent. ) No. 6504 - August 20, 2010
          Petition  for  Hearing  from  the  Court   of
          Appeals  of  the State of Alaska,  on  Appeal
          from  the  Superior Court  of  the  State  of
          Alaska,  Third Judicial District,  Anchorage,
          Philip R. Volland and John Suddock, Judges.

          Appearances:  G. Blair McCune,  Wasilla,  for
          Petitioner.  Kenneth M. Rosenstein, Assistant
          Attorney  General, Anchorage, and  Daniel  S.
          Sullivan,   Attorney  General,  Juneau,   for

          Before:   Carpeneti,  Chief  Justice,   Fabe,
          Winfree, and Christen, Justices.

          CARPENETI, Chief Justice.

          I.    In  a  criminal trial for misconduct involving  a
controlled  substance,  the defendant  asserted  the  affirmative
defense  of entrapment and requested a hearing.  The trial  court
denied  the request because defendant had not submitted  evidence
supporting the elements of entrapment.
          The  question  now before us is whether a  trial  court
must hold a hearing on the affirmative defense of entrapment even
when  the  defendant  fails to submit evidence  to  support  each
element  of  the  defense.   Because  the  right  against   self-
incrimination  exempts a criminal defendant from any  requirement
of   making  an evidentiary showing, we hold that a  trial  court
must provide a hearing on entrapment when the issue is raised  by
a  defendant  and the defendant requests a hearing.  Accordingly,
we remand to the superior court for a hearing.
     A.   Facts
          In  May  2006  a jury convicted Frank Marshall  on  one
count   of   second-degree  misconduct  involving  a   controlled
substance.  The conviction was for selling OxyContin pills to  an
undercover police officer on November 25, 2003.1
          Two  police  informants, Robert  Clossey  and  Margaret
Purcell,  participated in Marshalls drug  sale.   They  had  been
arrested in April 2002 for selling OxyContin and were helping the
police in exchange for favorable treatment.
          According   to  Clossey,  Marshall  contacted   Clossey
November  24, 2003, because Marshall  who was allegedly  homeless
had  an  OxyContin  prescription and wanted to  sell  the  pills.
Clossey  and the other informant, Purcell, took Marshall in,  fed
him,  and  let him stay with them.  Although neither Clossey  nor
Purcell  confirmed it, the defenses theory of the case  was  that
the  informants  drove Marshall to the pharmacy to  pick  up  his
prescription.    The   next   day,   November   25,Clossey   made
arrangements with the police for the undercover sale.
          To  complete the sale, Clossey drove Marshall to a pre-
arranged spot where the undercover officer walked up to Marshall,
who  sat in the vehicles passenger side.  Clossey negotiated  the
sale  and  then  Marshall  handed the  pills  to  the  undercover
          Upon  driving  away, Clossey and Marshall  were  pulled
over  and arrested. A search of the vehicle revealed prescription
receipts  in  Marshalls name, an OxyContin pill on the  passenger
side floor, and $600 cash hidden in the springs of the passengers
seat cushion.
     B.   Proceedings
          1.   Superior Court
          A  grand  jury  indicted Marshall on  three  counts  of
misconduct  involving a controlled substance as a result  of  the
drug sale.
          Marshall  moved  to  dismiss the counts  based  on  due
process violations and the affirmative defense of entrapment.  He
included  in  the  title  of his motion  the  words  Request  for
Hearing, but did not further allude to a hearing in the  body  of
his  motion.  Marshalls motion summarized Alaskas adoption of the
objective entrapment defense  and alleged that the OxyContin sale
had  been  initiated  and  arranged by  the  informant,  Clossey.
Marshall  also  claimed that the pills could have been  Closseys,
not his.  The States opposition pointed out that Marshall had  no
evidence supporting his claim that the pills belonged to Clossey.
          The  superior  court dismissed one of the three  counts
against  Marshall,  but denied the rest of  Marshalls  motion  to
dismiss  and  request for a hearing.  In its decision  the  court
          focused on whether the pills had been Closseys or Marshalls, and
found  no  evidence that they were Closseys.  Accordingly,  since
Marshall  had  not submitted evidence supporting  his  entrapment
defense, the court denied the request for a hearing. After trial,
a  jury convicted Marshall on one count of misconduct involving a
controlled substance in the second degree.
          2.   Court of Appeals
          Marshall    appealed   his   conviction.2     Regarding
entrapment,  the court of appeals focused on whether  Clossey  or
Marshall  had provided the pills  the same focus as the  superior
court.3   The  court noted that Marshall had the  opportunity  to
present evidence, such as an affidavit, but did not do so.4   The
court of appeals affirmed Marshalls conviction, holding that pre-
trial  motions  require a hearing only if the  moving  party  has
alleged specific facts supported by evidence.5
          We   granted  Marshalls  petition  for  hearing  on   a
question:  whether it was error to refuse to hold an  evidentiary
hearing on Marshalls affirmative defense of entrapment.
          The  interpretation  of procedural  rules  is  a  legal
question  which  we  review de novo.6  We  also  review  de  novo
whether  the  defendants assertion of an affirmative  defense  is
sufficient to require the trier of fact to consider the defense.7

          We  must  decide whether it was proper for the superior
court  to  deny Marshalls request for a hearing on entrapment  on
the  ground  that Marshall did not submit evidence  demonstrating
that all elements of entrapment could be met.  The superior court
observed that Marshall could have met that evidentiary burden  by
submitting an affidavit attesting to the elements of entrapment.8
We consider whether such a submission should be a prerequisite to
obtaining a hearing on entrapment.
          Article  I,  section  9,  of  the  Alaska  Constitution
states:  No  person shall be compelled in any criminal proceeding
to  be  a  witness  against himself.   In  Scott  v.  State,9  we
interpreted  this  broadly, holding that it  prohibits  extensive
pretrial   prosecutorial  discovery  in  criminal  proceedings.10
Accordingly,  defendants need only give notice of  defenses  they
intend  to  rely  on,  and  courts  may  not  compel  potentially
incriminating  testimony.11   Based  on  this  precedent,  Alaska
Criminal Rule 16(c)(5) requires defendants to disclose, at  least
ten  days  before trial, only their intent to rely on entrapment,
and not further details.12
          Scott  is  the  foundational  case  addressing  whether
courts  can  require  defendants to disclose, through  discovery,
information  supporting  a  defense   in  that  case,  the  alibi
defense.13    Even  though  the  ultimate  burden  of  persuasion
regarding  the defense rests on the defendant, in Scott  we  held
that  it  would  violate Alaskas right against self-incrimination
for   a   court   to  compel  early  production  of   potentially
incriminating testimonial statements.14  We were persuaded by the
historical  and constitutionally guaranteed right of a  defendant
          in a criminal case to remain completely silent, requiring the
state  to prove its case without any assistance of any kind  from
the  defendant himself.15  We were keenly aware that a  defendant
might  assert an alibi as a last resort, only if the  prosecution
had  made a particularly strong case at trial.16  In such a case,
compelling  disclosure  from  the  defendant  early   before  the
defendant had firmly decided whether to assert the defense  would
violate the defendants right against self-incrimination.17
          Both  Scott  and  Criminal Rule 16(c)(5)  bear  on  the
present  case.   Here,  without holding a hearing,  the  superior
court  denied Marshalls affirmative defense for failure to submit
evidence  showing  that the drugs belonged to informant  Clossey,
not  Marshall.  Presumably this evidence would have been  in  the
form  of  an  affidavit by Marshall.18  Such an  affidavit  would
require Marshall to testify regarding aspects of the transaction,
in violation of Article I, section 9, of the Alaska Constitution,
and would exceed the minimum disclosure required by Criminal Rule
16(c)(5).  This is precisely the type of disclosure we prohibited
in Scott, because it would require the defendant to testify in  a
situation  where  he  otherwise could  exert  his  right  not  to
testify.   At  a hearing, Marshall might establish entrapment  by
employing methods besides his own testimony.
            Accordingly,  if trial courts required defendants  to
produce  evidence of each element of a defense before granting  a
hearing,  the  result  would potentially violate  the  defendants
constitutional  right to avoid compelled testimony  by  requiring
more  extensive disclosure than the Alaska Constitution allows.19
Additionally, Criminal Rule 16(c)(5) protects defendants  against
compelled  self-incrimination by requiring them to  disclose,  in
advance  of  trial, only notice of their intent to  rely  on  the
affirmative  defense of entrapment, and not additional  evidence.
We  therefore hold that a defendant need only give notice of  his
or  her  intent  to  rely on entrapment,  but  need  not  produce
evidence supporting the defense before receiving a hearing.
          We  are not persuaded otherwise by the appellate courts
citation to Adams v. State20 and Davis v. State.21  The court  of
appeals  relied  on  those cases to show  that  pretrial  motions
require  a hearing only if the moving party has alleged  specific
facts supported by affidavits or other documentation.22  But both
cases predate Criminal Rule 16(c)(5).23  Also, both cases rely on
Alaska Civil Rule 77, which states that evidence must be attached
to  a  pre-trial motion.24  However, Criminal Rule 42 now governs
that  issue  in  the criminal context, and does not  require  the
attachment of affidavits, as does Civil Rule 77.25  Thus, we  are
unpersuaded  that  Adams  and  Davis  trump  the  protections  of
Criminal Rule 16(c)(5).
          Finally,  we  note that Marshalls case was  taken  off-
track  by  a  mistaken  focus  on  whose  OxyContin  pills   were
exchanged.   Although  one sentence in Marshalls  request  for  a
hearing  asserted  that  the pills might  have  belonged  to  the
informant, the request otherwise provided specific allegations of
extensive  government  involvement in  the  sale,  including  the
allegations  that  the government informants  took  Marshall  in,
providing  food and a place to stay; took him to the pharmacy  to
          help him fill his prescription; arranged the sale; drove Marshall
to  the  sale; and conducted all negotiations with the undercover
police  during  the  sale.  Because entrapment  exists  when  the
police   use  fundamentally  unfair  or  dishonorable   practices
inducing someone to commit a crime,26 these facts could support an
entrapment  defense.   Examples  of  prohibited  conduct  include
extreme  pleas of desperate illness, appeals based  primarily  on
sympathy,  pity,  or  close personal friendship,  and  offers  of
inordinate   sums  of  money.27   Thus,  even  were   the   pills
undisputedly Marshalls, Marshall could possibly avail himself  of
the entrapment defense.
          Criminal  Rule  16(c)(5)  protects  defendants  against
compelled  self-incrimination by requiring them to  disclose,  in
advance,  only notice of their intent to rely on the  affirmative
defense  of  entrapment, and not additional evidence.   Requiring
criminal  defendants to produce additional evidence of entrapment
in  order  to  obtain an evidentiary hearing on the matter  would
render the protections of Criminal Rule 16(c)(5) irrelevant,  and
would  violate the Alaska Constitutions prohibition against self-
incrimination.28  Accordingly, a criminal defendant need only give
notice of his or her intention to rely on entrapment in order  to
receive  a  hearing  on the matter.  Because Marshall  gave  such
notice, he should have received a hearing.  We REMAND the case to
the superior court for proceedings consistent with this opinion.
     1     See  Marshall v. State of Alaska, 198  P.3d  567,  569
(Alaska App. 2008).  The facts set out in this section are  taken
from the opinion of the court of appeals.

     2    See Marshall, 198 P.3d at 567.

     3    Id. at 571.

     4    See id. at 567.

     5    Id. at 573.

     6     DeNardo v. ABC Inc. RVs Motorhomes, 51 P.3d  919,  922
(Alaska 2002).

     7    State v. Garrison, 171 P.3d 91, 94 (Alaska 2007).

     8    Marshall, 198 P.3d at 571-72.

     9    519 P.2d 774 (Alaska 1974).

     10    Id. at 785.

     11    Id. at 785-87.

     12    See Minutes, Criminal Rules Committee 1 (Nov. 21, 1994)
(drafting Criminal Rule 16(c)(5) to comport with Scott).

     13    Scott, 519 P.2d at 776.

     14    Id. at 785.

     15    Id. at 781-82 (citing Williams v. Florida, 399 U.S. 78,
107-08 (1970) (Black, J., dissenting)).

     16    Id. at 783-86.

     17    Id.

     18     Marshall  v.  State of Alaska, 198 P.3d  567,  571-72
(Alaska App. 2008).

     19    See Alaska Const., art. I,  9.

     20     Marshall, 198 P.3d at 572 (citing Adams v. State, 704
P.2d 794, 796-97 (Alaska App. 1985)).

     21    Id. (citing Davis v. State, 766 P.2d 41, 43-45 (Alaska
App. 1988)).

     22    Id.

     23     See Alaska Supreme Court Order No. 1191 (February 21,
1995) (establishing Criminal Rule 16(c)(5)).

     24    Adams, 704 P.2d at 797; Davis 766 P.2d at 43.

     25      Compare   Alaska  R.  Civ.  P.  77(b)(1)  (requiring
documents, including affidavits, to be attached to motions), with
Alaska  R.  Cr. P. 42(b)(1) (using almost identical language  but
omitting affidavits).

     26     Washington v. State, 755 P.2d 401, 405  (Alaska  App.

     27    Grossman v. State, 457 P.2d 226, 230 (Alaska 1969).

     28    Alaska Const., art. I,  9.

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