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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
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| FRANK HENRY MARSHALL, | ) |
| ) Supreme Court No. S- 13401 | |
| ) | |
| Petitioner, | ) Court of Appeals No. A-09721 |
| ) Superior Court No. 3AN-03-12471 CR | |
| v. | ) |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| 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
Respondent.
Before: Carpeneti, Chief Justice, Fabe,
Winfree, and Christen, Justices.
CARPENETI, Chief Justice.
I. INTRODUCTION
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.
II. FACTS AND PROCEEDINGS
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
officer.
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.
III. STANDARD OF REVIEW
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
\
IV. DISCUSSION
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.
V. CONCLUSION
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.
1988).
27 Grossman v. State, 457 P.2d 226, 230 (Alaska 1969).
28 Alaska Const., art. I, 9.
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