State v. Erickson

Citation574 P.2d 1
Decision Date20 January 1978
Docket NumberNo. 3250,3250
PartiesSTATE of Alaska, Appellant, v. James Edward ERICKSON, Jeffrey Mueller, David Andrew Laschober, Albert Vasconcellos, Anthony C. Phillips, Fred J. McVicker and Douglas Sopko, Appellees.
CourtSupreme Court of Alaska (US)

Charles M. Merriner, Asst. Dist. Atty., Joseph D. Balfe, Dist. Atty., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellant.

Barbara Miracle, Sue Ellen Tatter, Asst. Public Defenders, Brian Shortell, Public Defender, Anchorage, for appellees David Laschober and Anthony C. Phillips.

Phillip P. Weidner, Drathman & Weidner, Anchorage, for appellees Albert Vasconcellos and Douglas Sopko.

Bruce A. Bookman, Anchorage, for appellee James Edward Erickson.

Douglas Pope, Anchorage, for appellee Fred J. McVicker.

R. Collin Middleton and Craig Cornish, Wagstaff & Middleton, Anchorage, for appellee Jeffrey Mueller.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, BURKE and MATTHEWS, JJ.

OPINION

BOOCHEVER, Chief Justice.

The validity of Alaska laws prohibiting possession and sale of cocaine are questioned in these appeals, and we are presented with difficult questions involving the equal protection and due process clauses of the United States 1 and Alaska 2 Constitutions and the right to privacy. 3 Specifically, we must look to the entire statutory scheme for regulation of drug use and determine the following issues: 4

1. Is the classification of cocaine users with users of narcotics over-inclusive and violative of equal protection because cocaine is not a narcotic drug?

2. Is the classification of cocaine with narcotics arbitrary and irrational so as to violate due process?

3. Is the statutory scheme for regulation of cocaine violative of due process or equal protection because it permits prosecutorial discretion to charge cocaine offenses under either AS 17.10 or AS 17.12?

4. Is criminalization of the personal use and possession of cocaine in the home an invalid infringement on the right to privacy?

Each of the seven defendants in these consolidated appeals was indicted under AS 17.10.010 5 which prohibits the possession, sale and distribution of narcotic drugs 6 as defined in AS 17.10.230, 7 and moved to dismiss the indictments 8 on a variety of constitutional grounds.

After a lengthy evidentiary hearing, the trial court entered a carefully detailed memorandum decision which dismissed the indictments and stated that the defendants could possibly have been charged with violations of AS 17.12.010. 9 Summarizing the testimony of the two witnesses and eight affidavits of experts presented by the defendants and the testimony of the three witnesses called by the state, 10 the court found that:

(I)t is beyond dispute that cocaine is unlike the opiates and compares with amphetamines. All of the scientific expert witnesses called by the petitioners and the State of Alaska agree on the fact that cocaine is not a narcotic for pharmacological purposes. The experts disagree on the dangerousness of cocaine use both to the user and to society.

It concluded that the classification of cocaine as a narcotic violated equal protection and due process guarantees of the Alaska Constitution.

While we find the case a close one and are convinced from the record and other reliable scientific sources that cocaine, as principally used today, is less deleterious than popularly believed, we have concluded that the legislation is valid; and, accordingly, we reverse.

SCOPE OF APPELLATE REVIEW

Because our decision must necessarily rest to a large extent on scientific evidence concerning the nature and the effects of cocaine, we must at the outset assess the wisdom and propriety of considering on appeal materials which were not presented to the trial court.

In this case, the state has introduced numerous materials for the first time on appeal; and the defendants argue that our consideration should be limited to the evidence presented to the trial court. Reasons of judicial economy and fairness to the trial judge and litigants would compel us to agree with the defendants in most cases. Where, however, the validity of legislation having major social consequences is at stake, we conclude that an appellate court may be compelled to accept sources from outside the record.

Traditionally, a court's review of materials not contained in the trial record was justified through the use of judicial notice. The original concept of judicial notice comprised cases where the court took notice of facts which were "universally known and recognized" 11 or "within the knowledge of most men." 12 As the common knowledge requirement became fictionally expanded to include refreshing of judicial recollection, the scope of judicial notice was extended to encompass facts capable of certain verification. 13 The common thread between these two positions was the fact that, under either requirement, the information taken by notice was irrefutable. This has been and remains the standard with respect to the adjudicative facts in a case. Adjudicative facts, in the terminology of Professor K. C. Davis, 14 are those facts which explain who did what, when, where, how and with what motive and intent. In these appeals, we are not confronted with any conflict as to the adjudicative facts. Questions as to what various defendants did are not in issue.

Adjudicative facts are distinguished from what Professor Davis, followed by Professor McCormick, 15 call legislative facts. Legislative facts come into play when the court is faced with the task of deciding the constitutionality of a statute, statutory interpretation or the extension or restriction of a common law rule upon grounds of policy. These policy decisions, as in the case at hand, often hinge on social, 16 political, 17 economic, 18 or scientific facts, 19 most of which no longer fall within the classification of irrefutable. Cases involving such decisions 20 cannot be decided adequately without some view by the court of the policy considerations and background upon which the validity of a particular statute or rule is grounded. 21

McCormick on Evidence, § 334 (2d ed. 1972), alludes to the proposition that the topic of judicial notice, particularly as to legislative facts, does not conveniently fit within the structured confines of the law of evidence, but rather is more appropriately categorized in the more general area of judicial reasoning. 22 A distinction must be made between evidence of the particular facts of a case, which can be accepted only through prescribed methods calculated to assure credibility, and those facts which are of greater policy significance in that they describe aspects of our larger environment and form the basis upon which adjudicative facts are evaluated. It is a slippery distinction at best; but it is one that has been drawn by Davis, 23 incorporated into the federal rules, 24 and at least implicitly recognized in nearly every situation where a court has been called upon to address a question of policy in evaluating the rationality or reason behind a statute or rule. 25

Here we are concerned with the attributes and effects of the drug cocaine. Our decision is therefore not based on the particular facts in this case but on matters of general scientific knowledge. We recognize that evaluation of scientific information at the appellate level is without the advantage of cross-examination of witnesses and the resulting increase in the reliability of the "facts" ascertained. In cases such as this, however, there are literally hundreds of scientific articles and numerous experts. An effort to present any substantial number of those experts in a courtroom would be prohibitively expensive and unduly time-consuming. Moreover, in the final analysis, it is questionable whether such an expanded hearing would reveal more reliable or higher quality information than is available by referring to authorities submitted in briefs by both sides, and, in appropriate cases, by additional research at the appellate level.

In the case before us, because counsel for both sides cited exhaustive sources, it is unnecessary for us to refer to additional materials. We thus are not presented with the question of whether the requirements of Civil Rule 43(a)(6)(d), 26 affording parties opportunity to respond, must be met. We do not believe, however, that the rule necessarily applies to "legislative" facts.

Appellate courts often consider evidence outside the record in reaching their decisions. While some courts do it more formally than others, the great weight of authority supports judicial discretion in this matter. 27 The United States Supreme Court has relied on material not presented to the trial court on numerous occasions. 28

In this case, the trial court heard four days of testimony. Dr. Andrew T. Weil and Dr. Sanford J. Feinglass testified for the defendants. The state presented three expert witnesses Mr. John T. Maher, Dr. John Griffith and Dr. Floyd E. Anderson. In addition, the state presented evidence regarding street prices of cocaine in Anchorage and the profitability of cocaine trafficking. Finally, the trial court also had before it the affidavits of eight scientists who have studied the pharmacological nature and scientific use of cocaine: Dr. Norman Zinberg, Dr. Lance Simpson, Dr. Andrew Weil, Dr. James Thorpe, Dr. Paul Lowinger, Dr. Robert Byck, Dr. Robert G. Newman and Dr. Richard Kunnes. Although we consider this evidence in evaluating the constitutional issues before us and defer to the trial court's experience in evaluating the credibility of witnesses, 29 we conclude that in cases involving scientific information the court cannot be limited to the evidence presented to the trial court. Where "legislative facts" are concerned, it must be free to avail itself of other scientific sources. Therefore, our decision will rest on all relevant and current information concerning cocaine. Where the authors of such works have not been...

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