Morris v. State

630 P.2d 13, 1981 Alas. LEXIS 605
CourtAlaska Supreme Court
DecidedJune 26, 1981
Docket4264, 4318
StatusPublished
Cited by13 cases

This text of 630 P.2d 13 (Morris v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Morris v. State, 630 P.2d 13, 1981 Alas. LEXIS 605 (Ala. 1981).

Opinions

OPINION

BURKE, Justice.

Anthony Morris and Randolph Francis Miller were convicted of dispensing marijuana (Count I) and possession of marijuana for the purpose of sale (Count II) in violation of AS 17.12.010.1 Morris and Miller were sentenced to five-year terms of imprisonment on each count,2 to be served [15]*15concurrently, with four and one-half years suspended. See AS 12.55.080.

I

In late February or early March, 1978, Miller asked Andy “Moose” Harlan, age seventeen, if he would sell some marijuana for him. Harlan agreed, and a few days later went to a small cabin in Fairbanks to pick up the marijuana. Harlan purchased a small amount of the drug for his own use for ten dollars, and received an additional four ounces from Miller, with the understanding that he would pay $185.00 for it after he sold it. Later, Morris came from behind a curtain which divided the cabin. Miller handed Morris the ten dollars that Harlan had given him, and told him it was Harlan’s payment for some marijuana.

Harlan was arrested shortly after he began his sales efforts, and agreed to cooperate with the police. He and David Curwen, a police agent, returned to the cabin, where Morris answered the door. Harlan told him that Curwen had purchased the four ounces, whereupon Curwen and Morris began to discuss the possibility of more marijuana sales. In the course of the conversation, Morris “indicated that he was supposed to take the [$185.00 owed on the four ounces]; that’s what Randy wanted him to do.” Curwen gave him the money, which Morris put in his pocket. By this time, Curwen had tentatively agreed to buy an additional one-half pound. Morris “indicated that there was a half-pound at the location, however, it was his partner’s, and he indicated the name, Randy, twice in . .. the conversation .... That he couldn’t get rid of that, he would have to go across town to get his own.” A signal was given, and other police officers entered the cabin and arrested Morris. Miller, who had apparently been in the curtained-off section of the cabin while the negotiations between Cur-wen and Morris took place, was also arrested.

On March 7, 1978, the Grand Jury returned an indictment charging both Miller and Morris with dispensing marijuana to a minor, Andrew Harlan, and possession of marijuana for purposes of sale.

Prior to trial, Miller moved to sever his trial from that of his co-defendant, Morris, on the ground that he would be unable to cross-examine Morris concerning Morris’ alleged statements to Curwen. The motion was denied. The court indicated, however, that it would hold a hearing on the admissibility of those statements at the time of trial, and that it would not permit the statements to be introduced if it appeared, at that time, that their introduction would violate Miller’s right of confrontation. At trial the court found Morris’ references to “Randy” and “my partner” admissible, because there was sufficient independent evidence of a joint undertaking to establish an exception to the hearsay rule.

As previously indicated, Morris and Miller were both convicted on each of the two counts charged.

II

Morris argues that his conviction on Count I (dispensing marijuana to a minor) was partly the result of an improper instruction. Over Morris’ objection, the court instructed the jury on accomplice liability. Morris contends that this deprived him of due process of law under the Fifth Amendment to the United States Constitution and article I, section 7 of the Constitution of Alaska, because he understood the indictment charged him as a principal, not an accomplice. This, he argues, is analogous to charging him with one offense and permitting the jury to find him guilty of another.

Morris’ argument is frivolous: there is no distinction between principles and accomplices under Alaska law. AS 12.15.010 (repealed by Ch. 166, § 21, SLA 1978, effective January 1,1980).3 “[A]ll persons concerned [16]*16in the commission of a crime, whether they directly commit the act constituting the crime or, though not present, aid and abet in its commission, shall be prosecuted, tried, and punished as principals.” Id. The indictment, therefore, was sufficient to put Morris on notice that he could be found liable under evidence showing that he was a principal or under evidence showing that he only acted as an accomplice. See Scharver v. State, 561 P.2d 300, 302 (Alaska 1977). Morris does not contend that he was misled as to what facts the state intended to prove, only that he thought those facts were going to be used under instructions which would omit mention of accomplice liability. Thus, we conclude that there was no error.

Ill

Morris further argues that, even if the accomplice instruction was properly given, the evidence at trial was insufficient to establish his criminal liability on Count I. According to Morris, there was a complete lack of evidence showing that he aided and abetted Miller’s sale of four ounces of marijuana to Harlan.4 We disagree.

There was evidence showing that Morris was more than a passive observer. He collected the proceeds from two drug sales, including the one to Harlan, and negotiated a third sale with Curwen. Thus, we believe reasonable persons could differ on the question of whether Morris was Miller’s partner and had aided and abetted him in the transaction leading to his conviction on Count I. Such being the case, Morris was not entitled to a judgment of acquittal. Ladd v. State, 568 P.2d 960, 969 (Alaska 1977) cert. denied 435 U.S. 928, 98 S.Ct. 1498, 55 L.Ed.2d 524; Gray v. State, 525 P.2d 524, 526 (Alaska 1974).

IV

Miller, in his appeal, claims that it was error to refuse to sever the trials because of the incriminating nature of Morris’ out-of-court statements to Curwen, which Miller says “should not have been admitted against [him] in a joint trial.” Miller’s argument misses the point: the trial court found that the out-of-court statements were admissible against Miller, because of the co-conspirator exception to the hearsay rule. Thus, even if the trials had been separate, the evidence would still have been admissible against Miller. If the court erred, it was in admitting the evidence at all, not in denying the motion for separate trials.5

The statements attributed to Morris were clearly hearsay6 as applied to Miller, and the only question is whether they were nonetheless admissible. In Amidon v. State, 565 P.2d 1248 (Alaska 1977), we adopted and set out the requirements for [17]*17the Alaska version of the co-conspirator exception to the hearsay rule. Relying on Kay v. United States, 421 F.2d 1007, 1010 (9th Cir. 1970), we found the exception applicable to a joint trial even in the absence of a conspiracy count.

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Morris v. State
630 P.2d 13 (Alaska Supreme Court, 1981)

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Bluebook (online)
630 P.2d 13, 1981 Alas. LEXIS 605, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morris-v-state-alaska-1981.