Coffey v. State, 3002
| Court | Supreme Court of Alaska (US) |
| Citation | 585 P.2d 514 |
| Docket Number | No. 3002,3002 |
| Parties | Thomas Lee COFFEY, Appellant, v. STATE of Alaska, Appellee. |
| Decision Date | 29 September 1978 |
Before BOOCHEVER, Chief Justice, and RABINOWITZ, CONNOR, BURKE and MATTHEWS, Justices.
In this criminal appeal, Thomas Lee Coffey presents numerous specifications of error arising from his conviction of sale of marijuana in violation of AS 17.12.010. Issues involve warrantless electronic monitoring of private conversations, preindictment delay, Criminal Rule 45, entrapment, scope of cross-examination, the right to an informant instruction and disqualification of a judge. Our review requires that we set forth the factual and procedural aspects of this case in some detail.
On November 26, 1974, Richard Martini, an informant, and Charles Hagan, a special commissioned Alaska State Trooper acting undercover, went to the residence of Thomas Coffey, where Hagan allegedly purchased one pound of marijuana for $250.00. Also present at the transaction were Jana Chisum, Coffey's companion, and, according to Coffey and Chisum, a fifth individual, identified only as "Bear." 1 The transaction was electronically monitored by Alaska State Trooper Roy Holland and Homer Police Chief Michael Daugherty. They listened to the conversation that ensued within the Coffey residence by means of a transmitter concealed on the person of Trooper Hagan and a receiver located in their vehicle, parked near the residence. The equipment also contemporaneously recorded the transmission.
The "buy" was prearranged by Daugherty, Holland, Martini and Hagan. The primary dispute at trial concerned whether Coffey or Martini did the actual selling to Trooper Hagan.
Hagan testified that he purchased the marijuana from Coffey. He stated that Coffey brought a white plastic garbage bag 2 containing approximately five pounds of marijuana 3 into the residence, that he paid Coffey $250.00 for one pound and that Coffey handed him the pound in return. He further stated that Coffey said he always had good marijuana and that, if Hagan purchased two pounds a week, the price would possibly drop to $170.00 a pound.
During cross-examination, Hagan stated that he did not know where Coffey got the marijuana. Hagan did testify, however, that he went to Homer to "make a case" on Coffey. The court refused to allow Coffey to attempt to show bias by Hagan as a result of an assault charge in Montana.
Although the quality of the monitoring equipment was poor, 4 Chief Daugherty testified that he overheard Coffey and Hagan negotiating a price and Coffey stating in effect that he was the "number one man" for marijuana in that area and that a future price may be cheaper. 5 Daugherty also stated that he did not know how the marijuana got to Coffey's residence, but that he and Martini had an arrangement prior to their discussing the presence of marijuana at the Coffey residence.
Informant Martini was called at a pretrial evidentiary hearing, but he invoked his fifth amendment privilege and refused to answer questions concerning the transaction. He did not testify at trial, although the defense attempted unsuccessfully to subpoena him. 6
Coffey testified that the marijuana belonged to Martini, who was storing it and other of his effects at Coffey's residence. 7 He stated that the sale to Hagan was transacted by Martini, who received the purchase money from Hagan. He stated that he brought the garbage bag of marijuana into the house at Martini's request.
Jana Chisum corroborated Martini's ownership of the marijuana and stated that the sale was from Martini to Hagan.
Coffey was indicted in Anchorage on March 20, 1975. When Coffey appeared in Anchorage for arraignment of March 28, 1975, he was informed that a prosecution motion for change of venue to Kenai had already been granted without service on the defendant. Judge Buckalew set aside the venue order which had been signed by Judge Moody, and Coffey was then arraigned. He pled not guilty.
Coffey then requested a nine-week postponement of the omnibus hearing. 8 The delay was granted.
On April 21, 1975, Judge Buckalew vacated his order which retained venue in Anchorage, stating for the record that venue was properly in Kenai Ab initio. At an appearance on a pretrial motion before Judge Kalamarides on April 23, the question of Criminal Rule 45 arose. Counsel for Coffey stated:
MR. DRATHMAN: Your Honor, he indefinitely waived the 4 months rule before Judge Buckalew.
By order of June 25, 1975, Judge Kalamarides set venue in Kenai.
On August 13, 1975, Coffey moved to dismiss the indictment due to violation of Criminal Rule 45 and preindictment delay. On August 15, Judge Hanson ruled that venue was properly in Kenai in the first instance. All remaining proceedings were before Judge Hanson.
On August 29, a hearing was held on Coffey's motion to dismiss the indictment for violation of Criminal Rule 45. His counsel stated:
MR. COWAN: (T)he only reason that he waived the Rule 45 rights at that time in Anchorage was because of the invalid retention of venue in the Anchorage court system. I've spoken to the defendant and he has advised me that he would never have waived Rule 45 if it had not been for the fact that the court established venue in Anchorage. It is his contention that if venue had properly been placed in Kenai, as it now is and he was aware of that, he would not have waived Rule 45.
Coffey also maintained that, since venue did not properly lie in Anchorage, the proceedings there, including waiver of Criminal Rule 45, were nullities. The court ruled that Coffey could withdraw his waiver and that time would run again from August 29, 1975; although the time would be tolled during the period between the Anchorage waiver and that date. Coffey agreed but maintained that the waiver was a nullity. The motion to dismiss was denied.
On October 1, 1975, Coffey's motion to dismiss for preindictment delay was denied. On October 8, 1975, Coffey moved to dismiss the indictment on a theory of entrapment. An evidentiary hearing was held on this issue, and the motion was denied in a written decision on January 22, 1976.
On April 5, 1976, the day set for trial, Coffey moved to dismiss for violation of Criminal Rule 45 and his constitutional right to a speedy trial. A motion was also filed to disqualify Judge Hanson for cause pursuant to AS 22.20.020. All three motions were denied. The motion for disqualification was not heard by another judge, and trial by jury began that day.
Coffey's objections to any testimony derived from the monitored conversations were overruled. The tape was later placed in evidence by the defense. A request for an informant instruction pertaining to Hagan's testimony was denied.
Coffey was convicted of one count of sale of marijuana in violation of AS 17.12.010. He was sentenced to three years with all but ninety days suspended. This appeal followed.
In State v. Glass, 583 P.2d 872 (Alaska, 1978), we held that warrantless monitoring of a private conversation by a participant to that conversation violates art. I, §§ 14 and 22 of the Alaska Constitution. 9 For reasons set forth in our decision in Glass, we reverse Coffey's conviction on the basis of the admission, over objection, of testimony derived from monitoring devices. 10 In the event there is a retrial of this case, the following issues may arise, and for that reason, will be discussed: preindictment delay; Criminal Rule 45; entrapment; cross-examination of Trooper Hagan; informant instruction and disqualification of Judge Hanson. 11
Coffey allegedly sold the marijuana to Hagan on November 26, 1974. The indictment was returned on March 20, 1975. Nearly four months elapsed between the incident and the formal charge.
A claim of preaccusation delay must sound in terms of deprivation of due process of law. 12
Two factors are to be considered under both federal and state law: (1) the reasonableness of the delay; and (2) the resulting harm to the accused. 13 The United States Court of Appeals for the District of Columbia Circuit has stated:
(N)arcotics charges must be dismissed where the delay between the undercover agent's detection of the crime and notice to the accused of criminal charges is unreasonable and prejudicial to him. 14
The court dismissed an indictment due to a preindictment delay of seven months during which time a witness was lost and the undercover agent, who had sworn out fifty-one warrants, could testify only from notes. 15 In another case, the court sustained an indictment where similar claims were raised, but the delay was only three and one-half months. 16
In Marks v. State, 496 P.2d 66, 68-69 (Alaska 1972), we reversed a conviction for a preindictment delay of eight months, which delay the state did not attempt to justify. 17 In McKay v. State, 489 P.2d 145, 151 (Alaska 1971), however, we upheld an indictment after a delay of approximately two and one-half months, stating:
Some delay between offense and formal charge is clearly justified in cases involving drug undercover agents, and appellant here has not shown that the delay in his case was oppressive or unreasonable, or that he was prejudiced either in the preparation of his defense or because of an unreliable identification.
In Yarbor v. State, 546 P.2d 564 (Alaska 1976), we rejected a due process claim arising from a nine-month delay in a prosecution for lewd and lascivious acts toward a child, holding that the defendant had failed to show the absence of a valid ...
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