Fresneda v. State

• Citation: 458 P.2d 134
• Decision Date: 27 August 1969
• Docket Number: No. 1045,1045
• Parties: Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee.
• Court: Alaska Supreme Court

Page 134

458 P.2d 134

Arthur FRESNEDA, Appellant, v. STATE of Alaska, Appellee.

No. 1045.

Supreme Court of Alaska.

Aug. 27, 1969.

W. G. Ruddy, Juneau, for appellant.

Harold Tobey, Dist. Atty., Juneau, for appellee.

Before NESBETT, C. J., and DIMOND, RABINOWITZ, BONEY and CONNOR, JJ.

OPINION

BONEY, Justice.

Appellant was arraigned by the superior court at Juneau, Alaska, on a three-count indictment charging him with possession of marijuana on December 3, 1967, sale of marijuana to a minor on December 3, 1967, and possession of marijuana on December 10, 1967 (the day of appellant's arest), all in violation of AS 17.10.010, ¹ which makes 10, 1967 (the day of appellant's arrest), all manner any narcotic drug. At the time of indictment, AS 17.10.230(13) ² included marijuana in the definition of 'narcotic drug'.

On April 12, 1968, the superior court heard argument on appellant's motion to dismiss which was based on appellant's claim that the statute in question, AS 17.10.200, ³ which prescribed the penalties for violations of the laws concerning narcotic drugs, would inflict cruel and unusual punishment on appellant.

In determining the motion it was assumed that appellant had two prior narcotic convictions and that the mandatory minimum sentence he could receive would be 20 years imprisonment for each count of possession and life imprisonment for sale to a minor. ⁴ The statute also forbids suspension, probation and parole until the minimum sentence is served. ⁵ Thus appellant believed he was faced with mandatory life imprisonment without possibility of parole or suspension. Appellant argued that since it was the mandatory minimum sentence he was attacking, he did not have to wait until sentence was actually imposed. He contended that he was being prosecuted under a law which could only result in a cruel and unusual punishment.

At a later hearing, June 3, 1968, the court denied the motion to dismiss, finding that appellant lacked standing to attack the statute. The court reasoned that the only way appellant could attack the statute before trial was if the mandatory minimum sentence were unconstitutional. The court further noted that the provision of AS 17.10.200 concerning minimum sentences is in conflict with a later statute, AS 12.55.085(a) ⁶ which purports to allow the court to suspend a portion of any sentence and to place the person on probation. The court stated that as a matter of practice it relied on the later statute as authority for disregarding mandatory minimum sentences imposed by statutes enacted prior to AS 12.55.085(a). The court reasoned that if appellant was not faced with a minimum sentence, then there was no way in which appellant could attack the statute as imposing a cruel and unusual punishment. Appellant could wait until conviction and sentence and then attack his actual sentence as cruel and unusual punishment.

Appellant filed a second motion on May 20, 1968, attacking the constitutionality of the laws relating to marijuana for reasons apart from the issue of cruel and unusual punishment. Appellant contended that the statute improperly classified marijuana with hard narcotics, exceeded the police power of the state, was violative of due process, and denied appellant equal protection of the laws. Appellant also moved for an order directing the state to pay for the transportation and fees of an expert witness to testify in support of the second motion to dismiss. This motion was denied because the court could find no authority that required it to provide such funds, and the court did not have sufficient funds allocated to it for this purpose. Additionally, the court stated that a single witness would not really be sufficient to provide the factual background for a 'test case' on the constitutionality of the laws concerning marijuana. The second motion to dismiss was taken under advisement and denied at trial after the defense rested.

A jury returned a verdict on June 20, 1968, finding appellant guilty of two counts of possession of marijuana and one count of illegal sale of marijuana to a minor. The court noted that after the trial but before sentencing and final judgment a new law had taken effect which defined marijuana not as a narcotic but as a dangerous drug, AS 17.12.150(3)(A) ⁷ According to AS 17.12.110 ⁸ possession of marijuana became a misdemeanor and although sale was still a felony, there were no minimum sentences required. These statutes and the corresponding amendment of AS 17.10.230(13) ⁹ (delating marijuana as a narcotic) became effective August 4, 1968. Appellant was sentenced on August 12, 1968, and judgment was entered formally on August 14, 1968. The court after considering the memoranda of counsel, sentenced appellant according to the newly enacted statutes, to a total of 8 years with 3 years suspended.

Reviewing the events preceding appellant's arrest, it appears that in November of 1967, Sherri Dawn Meachem, age 16, went to Sergeant Cunningham of the Juneau police department and offered to help stop the traffic in marijuana in the Juneau area. She told Sergeant Cunningham that Jim Hastings, the roommate of appellant, had in the past sold marijuana to her husband; she did not mention the name of appellant at this time. Sergeant Cunningham did not direct Sherri Meachem to approach Hastings for the purpose of buying marijuana, but he did offer to cooperate with Sherri Meachem and told her that he would supply the money to make a purchase if she needed it.

A few days later Sherri Meachem approached Jim Hastings and requested that he sell her some marijuana. He stated that he did not have any of it at that time but would be getting some in the near future. According to Hastings' testimony he actually did have marijuana at that time, but wished to be cautious and investigate Sherri Meachem before making a sale.

On December 3, 1967, Jim Hastings and appellant went to the apartment of Sherri Meachem, evidently to make a sale to her; however, because she did not have any money they agreed to meet later at a bowling alley. It was appellant's testimony that he was not a party to any of the transactions between Hastings and Sherri Meachem. According to the testimony of Meachem and Hastings, appellant took part in the transaction of December 3 by wrapping the marijuana to be sold, and by suggesting that Sherri Meachem bring ten dollars to the bowling alley that night. Hastings testified that appellant had not made any sales other than his participation in the sale of December 3, 1967.

After appellant and Hastings left her apartment on December 3, 1967, Sherri Meachem obtained two five dollar bills from Sergeant Cunningham, who noted the serial numbers of the bills. That evening, December 3, appellant, Hastings and Sherri Meachem met at the bowling alley and according to Sherri Meachem and Hastings, appellant handed three marijuana cigarettes to Hastings, who in turn gave them to Sherri Meachem. Sherri Meachem paid the ten dollars to Hastings. The money was immediately spent by appellant and Hastings. It is undisputed that the marijuana belonged to Hastings and not to appellant. Later, on the evening of December 3, Sherri Meachem turned the three marijuana cigarettes over to Sergeant Cunningham. No arrests were made at this time, because Chief Wellington of the Juneau police department wished to get at the source of supply of marijuana.

On December 10, 1967, Sherri Meachem again went to the police and informed them that another sale had been made to her by Hastings. There was no evidence linking appellant with the sale made on December 10, 1967. As a result of this sale the police decided to arrest appellant and Hastings.

On December 10, 1967, Chief Wellington, Lieutenant Ciraulo, Sergeant Cunningham, of the Juneau city police department, and an attorney from the Juneau district attorney's office proceeded without arrest or search warrants to the apartment where appellant and Jim Hastings lived. The officers knocked and entered the apartment. The apartment consisted of a bedroom, kitchen, bathroom and possibly another room. When the officers entered they found Hastings and appellant. Hastings had opened the door for the police after delaying a minute or two, enabling appellant to throw a quantity of marijuana into an oil stove. Appellant denied having done this.

The police officers proceeded to search the apartment thoroughly. Sergeant Cunningham testified that they were not looking for the two five dollar bills whose serial numbers had been noted. These bills were never recovered. Lieutenant Ciraulo stated that the search was a 'matter of routine'. Chief Wellington stated that they were looking for weapons which could be used to effect an escape and for any evidence which could be used 'in a criminal case'. There is no direct evidence that the police were looking for anything specifically related to the events of December 3, 1967.

During the search, Lieutenant Ciraulo opened a cabinet in the kitchen area. According to the police officer, appellant admitted at the time that he kept his things in the cabinet. The officer found in the cabinet some letters addressed to appellant and a toothbrush container. Upon opening the toothbrush container, the police officer discovered three marijuana cigarettes. Hastings testified that all the marijuana in the apartment belonged to him but that the three cigarettes in the toothbrush container were not his and had never been seen before by him. These three marijuana cigarettes were introduced at trial over the objection of appellant, and formed the basis of the charge of possession of marijuana on December 10, 1967. Appellant and Jim Hastings were arrested at their apartment. Although it was never brought out exactly at what point the arrests were made, the arrests may have occurred before the search.

Appellant raises the point that the search conducted at the time of arrest in the apartment which he shared with Jim...