McKay v. State

Decision Date01 October 1971
Docket NumberNo. 1284,1284
Citation489 P.2d 145
PartiesMark McKAY, Appellant, v. STATE of Alaska, Appellee.
CourtAlaska Supreme Court

Victor D. Carlson, Public Defender, James D. Gilmore, Michael L. Rubinstein, Asst. Public Defenders, Anchorage, for appellant.

G. Kent Edwards, Atty. Gen., Juneau, Harold W. Tobey, Dist. Atty., Robert L. Eastaugh, Asst. Dist. Atty., Anchorage, for appellee.

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

CONNOR, Justice.

In June of 1969 Kenneth Foster was employed by the Anchorage Police Department to work as an undercover narcotics agent. His assignment was to get to know persons in the area who were selling drugs or who were in contact with persons who sold drugs. Foster was told to make as many buys from as many different people as he could. Foster was introduced by an informant to a group of young people who were suspected of being involved in drug use and sales.

In order to gain the trust of these people, Foster told them he was a drug dealer from Los Angeles. He told them he was expecting a shipment of some fifty 'keys' (kilos) of marijuana and was looking for local people to help him sell it. Foster asked one of the young men of the group where he could get some heroin, and on July 8, 1969, he was taken to the Q & 8 Billiard Parlor and introduced to Mark McKay.

Upon asking McKay for heroin, Foster was informed by McKay that heroin was available from a dealer named Maurice, but that Maurice would deal only through McKay. There was also some testimony that Foster had told the group that he had a friend who would be going to the North Slope soon and who was 'strung out' on heroin; that is, the friend was addicted and needed the drug quite badly. Mark McKay testified that Foster had told him about this friend.

McKay told Foster the price of heroin would be $25.00. Foster gave McKay $25.00 cash, and saw McKay walk over to a man who Foster later found out was Maurice. He observed an exchange between McKay and Maurice, after which McKay came over and handed Foster a slip of heroin.

On July 10, 1969, Foster was again in the Q & 8 Billiard Parlor. On this evening, he approached McKay and asked what he was selling. McKay stated he was selling hashish (a marijuana derivative) for $8.00 per gram. Foster thereupon purchased a quantity of hashish from McKay for $8.00, and observed McKay hand some money to another man. Foster believed it was the same $8.00.

Foster made a third purchase from McKay on July 16, 1969, also at the Q & 8 Billiard Parlor. Prior to July 16, 1969, Foster had asked McKay several times about the possibility of getting heroin. McKay had informed him that Maurice had not been in the Q & 8 recently. On the evening of July 16, 1969, however McKay approached Foster and asked him if he was still interested in purchasing some heroin. Maurice had been 'busted' and McKay was short of money. McKay stated he wanted to make this sale himself. Foster agreed after checking with his immediate supervisor. Foster purchased a slip of heroin from McKay later that evening for $20.00.

Toward the end of September 1969, it became apparent that Foster's true identity was about to be discovered. Therefore, when the grand jury convened on September 25, 1969, Foster testified in some 22 cases involving drug purchases, including Mark McKay's case. McKay was indicated by the grand jury on three counts, each count relating to one of the three sales described above. 1

Following a trial by jury, McKay was convicted on all three counts. Count I, which charged McKay with the July 8, 1969, sale involving Maurice was later dismissed by the trial court on the ground that McKay did not actually sell the drug to Foster, but was acting as Foster's purchasing agent in the transaction. An appeal was taken by McKay from the convictions on Counts II and III.

I

Appellant first contends that the trial court erred in denying his application to inspect the minutes of Kenneth Foster's testimony before the grand jury. During the cross-examination of Kenneth Foster, McKay's counsel asked the court for permission to inspect the grand jury's minutes of Foster's testimony, stating, '(T)here's a possibility that there is a discrepancy between what was testified to before the Grand Jury and what may have been testified to today.' The trial court denied the application.

Following oral argument on the appeal, we ordered the record in this case to be supplemented. The supplemental record indicates that the minutes that were recorded by the grand jury contain only the names of the witnesses who testified. There were no notations of the content of any testimony.

Rule 6(g) of the Alaska Rules of Criminal Procedure sets forth who may be present at grand jury proceedings as follows:

'The prosecuting attorney, the witness under examination, interpreters when needed and, for the purpose of taking the evidence, a stenographer may be present while the grand jury is in session, but no person other than the jurors may be present while the grand jury is deliberating or voting.' (Emphasis added.)

The language above quoted with respect to the presence of a stenographer for recording testimony is clearly permissive and not mandatory. Further, there is no provision or rule at the present time requiring that grand jury proceedings be recorded or preserved in any manner.

Since it appears that the McKay grand jury proceedings were not preserved, appellant could not have gained any knowledge of Foster's grand jury testimony from an inspection of the minutes under any circumstances. We thus need not decide whether appellant made a showing of particularized need as required by our decision in Merrill v. State, 423 P.2d 686 (Alaska 1967), cert. denied, 382 U.S. 1020, 86 S.Ct. 640, 15 L.Ed.2d 534 (1966) and 386 U.S. 1040, 87 S.Ct. 1497, 18 L.Ed.2d 607 (1967), since the fact that the grand jury minutes did not contain notes of the content of Foster's testimony renders this issue moot.

II

Lyle Standiford was one of the group of young people with whom Kenneth Foster made acquaintance for the purpose of gaining entry into Anchorage's community of drug users and sellers. According to Foster's testimony, Lyle Standiford was present in the Q & 8 when the first heroin sale occurred on July 8, 1969. Foster also testified that on July 16, 1969, at the second heroin transaction, Mark McKay handed the slip of heroin that Foster purchased to Standiford, who in turn handed it over to Foster.

Standiford, testifying on behalf of Mark McKay, denied that he had seen or participated in any drug transactions between McKay and Foster. Before cross-examining Standiford, the prosecutor asked permission of the court to ask Standiford whether he had been indicted. Over objection, the court permitted the state's attorney to ask the following question:

'Q. (By Mr. Burke): Mr. Standiford, isn't it correct that at the present time, sir, you yourself are a defendant under charges arising out of the undercover work of Mr. Kenneth Foster, the complaining witness?'

Mr. Standiford answered that he was.

Appellant claims that an inquiry into whether a witness is presently under indictment is improper impeachment, since it asks for evidence of a particular wrongful act. 2 Because the primary purpose of the cross-examination was to show that Lyle Standiford might be biased or interested in the outcome of McKay's case, we think the inquiry was proper.

We discussed this point in Smith v. State, 431 P.2d 507, 509 (Alaska 1967) as follows:

'The question thus arises as to whether evidence is admissible where on the one hand it serves a legitimate purpose and on the other hand tends to accomplish that which is forbidden. We believe that the answer depends upon an advised judgment as to which of the two objectives is the primary one sought to be accomplished.'

In Smith, two defense witnesses were cross-examined concerning their operation, along with the defendant, of an alleged gambling house. We held the cross-examination complained of in that case was primarily for the purpose of attempting to show that the two witnesses were engaged in a business enterprise as partners of the defendant. Thus, the jury could easily have inferred that they had friendly feelings toward the defendant and might therefore slant their testimony in his favor. We also noted that the cross-examination was limited to whether the witnesses conduced the business, and sought only to elicit the nature of their relationship with the defendant.

In the case before us, Lyle Standiford was under indictment for selling drugs to Kenneth Foster. Standiford also was acquainted with Mark McKay. From these facts the jury could certainly find that Lyle Standiford had friendly feelings toward Mark McKay. Further, it is possible that Standiford hoped that if he could successfully discredit Foster in McKay's case, the state might view his own case as having been substantially weakened from the prosecution's viewpoint.

Finally, the state here did not attempt to inquire at all into the circumstances surrounding Standiford's indictment. The scope of the inquiry was limited to bringing out the basis for the possible bias or interest. We therefore hold that the cross-examination above quoted was proper, as it appears that the primary purpose was to show Standiford's possible bias or interest in the outcome of the case. 3

III

McKay next argues that his motion for judgment of acquittal should have been granted on the ground that appellant had been entrapped by the conduct of the police agent, Kenneth Foster. Appellant first points to the fact that Foster, a 29-year-old man, represented himself to this group of young persons as a 'big man in narcotics.' With respect to the fictional shipment of marijuana, Foster specifically offered Mark McKay a fifty-fifty split of the profits if McKay would help him sell it. Foster testified that fifty kilos of marijuana was worth $10,000, but failed to...

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