Fresneda v. State
| Decision Date | 31 March 1971 |
| Docket Number | No. 1287,1287 |
| Citation | 483 P.2d 1011 |
| Parties | Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
W. G. Ruddy, Juneau, for appellant.
G. Kent Edwards, Atty. Gen., Gail Fraties, Dist. Atty., Joseph D. Balfe, Asst. Dist. Atty., Juneau, for appellee.
Before BONEY, C. J., and DIMOND, RABINOWITZ, CONNOR and ERWIN, JJ.
In the case of Fresneda v. State, 458 P.2d 134 (Alaska 1969), this court reversed appellant's first conviction for possession and sale of marijuana. He was tried again December 29-31, 1969, and again convicted, from which conviction he brings this appeal.
Fresneda was found guilty on one count of possession of marijuana and another of sale of marijuana to a minor, a second possession count having been dismissed by the state during the trial. The state's principal witness was Mrs. Sherry Meachem Freheit. 1 At the time of the offense, in December, 1967, she was 16 years old and already married and the mother of a young baby. Since that time she has been divorced, remarried to another man, divorced again and remarried to the same man, and is apparently involved in still another suit for divorce. Both the girl and her mother were well acquainted with Sgt. John Cunningham of the Juneau police, a detective whose duties included working with juveniles. They knew Sgt. Cunningham as a family friend, from whom they sometimes sought advice on family problems.
In November of 1967, Sherry Meachem came to Sgt. Cunningham with a problem concerning her then husband, William Meachem, who at that time was in the Army serving in Vietnam. She was concerned over the fact that her husband had become a heavy user of marijuana, and apparently intended to smuggle a large quanity of the drug back with him when he returned to Juneau.
Because of her concern with her husband's use of the drug in Vietnam and his apparent plans to continue his involvement with the drug traffic upon his return, she agreed to aid the police in apprehending certain of her husband's friends ( George Katzeek and James Hastings) whom she believed to be involved with the marijuana traffic in Juneau. She undertook to 'make a buy' for the police, which she did. Although Arthur Fresneda was not one of the persons mentioned in Sherry Meachem's original conversation with Sgt. Cunningham, he did become involved in the subsequent sale, hus precipitating the case at bar.
Mrs. Meachem approached James Hastings to see if there was any way that she could buy some marijuana from him or from George Katzeek. She was informed by Hastings that he did not have any marijuana at that time and that he was not associating any further with George Katzeek, but that he expected a shipment of marijuana in the future. On December 3, 1967, Hastings, together with Fresneda, knocked on the door of the Meachem apartment at the Gold Lodge. At that time there were present three other people besides Mrs. Meachem: Rodney Pieren, Marcia Sims, and another person who is unidentified in the record. At that time, arrangements were made for Mrs. Meachem to meet with Hastings and Fresneda at the bowling alley at approximately 7:00 p. m. that evening.
Mrs. Meachem immediately telephoned Sgt. Cunningham of the Juneau Police Department, informed him of the arrangements and obtained from him money to make the purchase. She went to the bowling alley at approximately 7:00 p. m. and was present there when Hastings and Fresneda arrived. They proceeded outside the bowling alley where Mrs. Meachem received a small pill box full of marijuana and made payment of $10 to Hastings. The package was handed by Fresneda to Hastings, who handed it to Mrs. Meachem.
Mrs. Meachem then immediately took the package to Sgt. Cunningham at the Capitol Theater as had previously been agreed upon.
James Hastings testified in substantial conformity to the events noted by Sherry Meachem. He testified of going to the Meachem apartment with Fresneda and confirmed the conversation about arrangements for the sale at a later time in the day. Hastings testified that he was also present at the actual sale near the bowling alley and observed the exchange of money and the marijuana between Mrs. Meachem and appellant.
Rodney Pieren testified at the first trial but was absent at the second trial and his testimony was replayed in this case. Basically, Pieren testified as to the events at the apartment on December 3, 1967, including identification of the voices of Fresneda and Hastings. Pieren further confirmed the content of the conversation as testified to by Mrs. Meachem and Hastings.
Sgt. Cunningham and Police Chief Patrick Wellington of the Juneau Police Department testified as to their activities on the day in question and Sgt. Cunningham confirmed the activities and statements by Sherry Meachem about this particular matter, as well as the arrangements that were made.
The defendant did not take the stand himself, nor did he present evidence in his defense in this particular case, except concerning the reputation in the community for veracity of Sherry Meachem and Rodney Pieren. A verdict of guilty was returned against him as to the two counts remaining after the dismissal of the second count by the State of Alaska.
In this appeal to the Supreme Court, appellant has raised three specific issues as error: (1) The trial court erred in failing to give an informer instruction concerning the testimony of Sherry Meachem; (2) The trial court erred in admitting into evidence the testimony of Rodney Pieren; and (3) The trial court erred in refusing to allow appellant to waive cross-examination of the witness Pieren at the second trial by excluding that portion of the tape of Pieren's cross-examination which was taken at the first trial. Each of these matters will be considered in turn.
At the end of the trial, the appellant requested the following instruction regarding the testimony of Sherry Meachem:
The testimony of an informer, or any witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should always be considered with caution and weighed with great care.
The trial court refused to give the requested instruction for the reason that the general instruction as to the credibility of a witness would be more appropriate under the facts and circumstances of this particular case.
The 'informer instruction' is relatively new to the law. The one proposed by appellant's counsel in the instant case is the one normally used by the federal courts, and is taken verbatim from Mathes & Devitt, Federal Jury Practice and Instructions § 9.02 (1965).
The first federal case to require an informer instruction seems to have been Fletcher v. United States. 2 In commenting upon the use of a paid informer to establish a narcotics violation, the court stated:
In the circumstances we have detailed we think it apparent that appellant was entitled of right to have the jury cautioned. Granting that the credibility of the testimony of a paid informer is for the jury to decide, it nevertheless follows that where the entire case depends upon his testimony, the jury should be instructed to scrutinize it closely for the purpose of determining whether it is colored in such a way as to place guilt upon a defendant in furtherance of the witness's own interest. Here, admittedly, the usefulness of the witness-and for which he received payment from the agent-depended wholly upon his ability to make out a case. No other motive than his own advantage impelled in all that he did. * * * The rule in this jurisdiction for a quarter of a century has been to require that a jury be warned in the case of evidence given by a detective engaged in the business of spying for hire. The duty is more impelling where, as here, there is not a jot or tittle of other evidence and the criminal record of the witness is shown. 3
The District of Columbia cases cited in support of the 25-year history referred to in the opinion did not support the court's statement. Two of them were not informer but accomplice cases; 4 the other one actually involved an 'informer' or 'detective spying for hire' in a divorce case. 5
The general use of informer instructions in the federal courts seems to date from Justice Jackson's dictum in On Lee v. United States: 6
The use of informers, accessories, accomplices, false friends, or any of the other betrayals which are 'dirty business' may raise serious questions of credibility. To the extent that they do, a defendant is entitled to broad latitude to probe credibility by cross-examination and to have the issues submitted to the jury with careful instructions. 7
This passage is usually cited in support of the requirement of such instructions. 8
The original basis for the informer instructions seems to have been the fact that an informer is normally an interested witness; he is usually either paid, or hoping for lenient treatment of his own crimes, or both. In this connection, it is interesting to note that the original version of the above-cited Mathes & Devitt instruction read as follows:
INTERESTED WITNESS
All evidence of a witness whose self-interest or attitude is shown to be such as might tend to prompt testimony unfavorable to the accused, should be considered with caution and weighed with great care. 9
It was only with the publication of Mathes & Devitt in 1965 that the word 'informer' began to be specifically mentioned. 10 The latest published version of the same instruction reads as follows:
The testimony of an informer who provides evidence against a defendant for pay, or for immunity from punishment, or for personal advantage or vindication, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness. The jury must determine whether the informer's testimony has been affected by interest, or by prejudice against the defendant. 11
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Anderson v. State
...petitioner's trial without making a good faith effort through the federal authorities to bring him back to testify." Fresneda v. State, 483 P.2d 1011, 1017 (Alaska, 1971). And in Eastham v. Johnson, 338 F.Supp. 1278, 1281 "Barber v. Page discredited the old concept that a mere showing by th......
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Roby v. State
...and Instructions, 3rd Ed., § 17.02 and cases there cited. For an excellent history of the rule, comparatively new, see Fresneda v. State, Alaska 1971, 483 P.2d 1011. That court wisely cautions that every person coming forward to aid in the apprehension of criminals should not be singled out......
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