Bell v. StateBell v. State
- Reporters:
- ,
- Before:
- Bryner
OPINION
BRYNER, Chief Judge.
Willie B. Bell appeals his convictions for promoting prostitution in the first degree in violation of
Bell was a twenty-nine-year-old army sergeant when he procured two sixteen-year-old girls, C.R. and M.J., and one fourteen-year-old girl, D.W., for prostitution. C.R. began living with Bell and engaging in prostitution after Bell promised to marry her and to buy her a new car and new clothing. At Bell’s direction, D.W. and M.J. worked as prostitutes in May, 1980. On May 22, 1980, Bell assaulted M.J., claiming that she had been drinking instead of “working.” Fearing that Bell would harm them, C.R. and M.J. left him and contacted police, who obtained a search warrant to record conversations between M.J., C.R. and Bell. A telephone conversation between Bell and C.R. and a conversation involving Bell, M.J. and C.R. were recorded pursuant
The indictment returned against Bell charged two counts of promoting prostitution in the first degree, alleging that he induced D.W. to engage in prostitution when she was under the age of sixteen (Count I) (
On appeal, Bell argues that: (1) he should have been allowed to present a reasonable mistake of age defense to the charge contained in Count I; (2) a partially inaudible tape recording should not have been admitted into evidence; (3) the search warrant for recording of conversations was improperly issued and executed; (4) supplemental instructions given to the jury were unduly coercive; (5) the sentences imposed by the trial court violated his double jeopardy rights; and (6) Judge Souter gave improper consideration to a letter Bell wrote, while awaiting sentencing, to the fourteen-year-old daughter of another inmate.
I. MISTAKE OF AGE
Bell asserts that the trial court erred in refusing to give a proposed jury instruction providing for a reasonable mistake of age defense to the charge of inducing a person under the age of sixteen to engage in prostitution in violation of AS 11.66.-110(a)(2).
1
Bell argues that
It is apparent that the legislature considered procurement of a person under sixteen to be an aggravated form of promoting prostitution. The commentary to the Revised Criminal Code, 2 Senate Journal, Supplement No. 47, at 109 (1978), states that by denying a defendant the defense of reasonable mistake as to age, creation of strict liability was intended as to the element of the offense involving age of the victim. 2 Supporting the validity of the legislature’s decision in this regard is the supreme court’s opinion in Hentzner v. State, 613 P.2d 821 (Alaska 1980), in which the court held:
Where a crime involved may be said to be malum in se, that is, one which reasoning members of society regard as condemnable, awareness of the commission of the act necessarily carries with it an awareness of wrongdoing. In such a case the requirement of criminal intent is met on proof of conscious action, and it would be entirely acceptable to define the word “wilfully” to mean no more than a consciousness of the conduct in question.
Id. at 826. See also Wheeler v. State, 659 P.2d 1241, 1254 n. 18 (Alaska App.1983).
Bell correctly states the well-recognized rule in this jurisdiction that criminal intent is a necessary ingredient of criminal liability and that one charged with criminal conduct must have an awareness or consciousness of wrongdoing. Speidel v. State, 460 P.2d 77, 78 (Alaska 1969). In Speidel, the awareness of wrongdoing was in the context of a larceny-type crime, for which courts have historically required a specific intent to wrongfully deprive. In Alex v. State, 484 P.2d 677 (Alaska 1971), the supreme court discussed the intent required for non-larceny crimes:
However, as applied to crimes generally, what is imperative, is that an accused’s act be other than simply inadvertent or neglectful. What is essential is not an awareness that a given conduct is a “wrongdoing” in the sense that it is proscribed by law, but rather, an awareness that one is committing the specific acts which are defined by law as a “wrongdoing.” It is, however, no defense that one was not aware that his acts were wrong in the sense that they were proscribed by law. So long as one acts intentionally, with cognizance of his behavior, he acts with the requisite awareness of wrongdoing.
Id. at 681-82. 3
We believe this language is applicable to Bell’s actions, since he was consciously committing the acts proscribed by law. As an element of this offense, Bell was required to be aware that he was procuring women to engage in acts of prostitution. Indeed, the jurors in this case were instructed that they must be convinced beyond a reasonable doubt
that the defendant engaged in conduct which caused or induced [D.W.] to engage in prostitution; [and] that the defendant engaged in said conduct with the specific intent to cause or induce [D.W.] to engage in prostitution.
Thus, while Bell was not required to know the age of those whom he procured, this is not to say that the offense did not require mens rea or a culpable mental state.
We also note that
In continuing to press his claim that
Bell relies most heavily upon the following language in Guest:
It has been urged in other jurisdictions that where an offender is aware he is committing an act of fornication he therefore has sufficient criminal intent to justify a conviction for statutory rape because what was done would have been unlawful under the facts as he thought them to be. We reject this view. While it is true that under such circumstances a mistake of fact does not serve as a complete defense, we believe that it should serve to reduce the offense to that which the offender would have been guilty of had he not been mistaken. Thus, if an accused had a reasonable belief that the person with whom he had sexual intercourse was sixteen years of age or older, he may not be convicted of statutory rape. If, however, he did not have a reasonable belief that the victim was eighteen years of age or older, he may still be criminally liable for contribution to the delinquency of a minor.
Id. (citations and footnotes omitted). The court cited in support of its position section 2.04(2) of the Model Penal Code (Proposed Official Draft 1962), which provides:
Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
We believe the problem addressed in
Guest
is distinguishable from the issue at hand. As we have stated, Bell did not lack criminal intent; he intended to promote prostitution.
See Hentzner v. State,
613 P.2d at 826;
Wheeler v. State,
659 P.2d at 1251. The court in
Guest
was careful to point out that fornication was not itself a crime, so that it could not have been considered as a lesser-included offense of statutory rape. Also, although the court went on to observe that Guest
might
still have
This distinction is supported by analysis of other authorities. The revised criminal code contains no provision paralleling the second sentence of MPC § 2.04(2), quoted by the Guest court. Instead, AS 11.81.-600(b)(2) provides:
(b) A person is not guilty of an offense unless he acts with a culpable mental state with respect to each element of the offense, except that no culpable mental state must be proved
(2) if an intent to dispense with the culpable mental state requirement for that element clearly appears.
(Emphasis added.)
More importantly, despite the language of MPC § 204(2), the Model Penal Code takes essentially the same approach as the Revised Code to in its treatment of criminal intent for the offense of promoting prostitution. MPC § 251.2(2) (1980) makes the conduct proscribed by
Notwithstanding the use of the term “knowingly” in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.
We find it highly persuasive that these statutory schemes are, when applied to the precise conduct engaged in by Bell, in consonance with the approach taken in the Revised Code.
Under the Revised Alaska Criminal Code, it is Bell’s intentional procurement of a person under the age of sixteen years for prostitution that renders him liable for first-degree promoting, regardless of his actual awareness of that person’s age. The act of procuring another for purposes of prostitution is
malum in se,
without regard to the age of the person procured, and thus, as we have indicated, in a prosecution for procuring a person under the age of sixteen years, the intent to procure satisfies the minimal constitutional requirement of criminal intent.
Hentzner v. State,
613 P.2d at 826. We hold that
II. PARTIALLY INAUDIBLE TAPE
Bell argues that error occurred when a recording of a telephone conversation between Bell and C.R. was played for the jury. At trial, Bell’s attorney objected to admission of the recorded telephone conversation, contending that parts of the tape were substantially inaudible. The tape of another conversation was played without objection. Before this tape was played, the trial judge gave a cautionary instruction
The trial court’s decision to admit the phone tape is reversible error only if it constituted an abuse of discretion. Robinson v. State, 593 P.2d 621, 624 n. 5 (Alaska 1979). In Dana v. State, 623 P.2d 348 (Alaska App.1981), we considered the correctness of the trial court’s admission of a tape which had “significant gaps” due to equipment failure. We held that there could be no abuse of discretion in admitting the flawed tape unless its prejudicial impact outweighed its probative value. Id. at 353-54.
In the present case, after weighing the possibility of prejudice against the probative value of the tape, and taking into account the other evidence at trial, the cautionary instruction, and the fact that most of the tape is audible, we conclude that Judge Souter did not abuse his discretion in admitting the tape.
III. ISSUANCE AND EXECUTION OF THE GLASS WARRANT
Bell argues that procedures outlined in the federal electronic surveillance act should supplement the requirements, enumerated in State v. Glass, 583 P.2d 872 (Alaska 1978), that must be met before electronic monitoring of conversations is permitted. We considered and rejected a similar argument in Jones v. State, 646 P.2d 243, 248 (Alaska App.1982). See also Gallagher v. State, 651 P.2d 1185, 1187 (Alaska App.1982). Our holdings in Jones and Gallagher are dispositive of this issue.
Bell also contends that probable cause for the issuance of a Glass warrant did not exist because it was not known whether relevant conversations would occur between Bell, M.J. and C.R., and because M.J. and C.R. were neither reliable nor credible. Bell’s motion to suppress on this ground was denied at the omnibus hearing.
The judge’s determination that probable cause existed is entitled to great deference by this court. Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590-91, 21 L.Ed.2d 637, 645 (1969). We find ample facts to support issuance of the search warrant. C.R. and M.J. stopped working for Bell less than a week before they testified at the proceeding to issue the Glass warrant. Since C.R. had worked for Bell for nearly six months and given him $5,000 of the money she made by prostitution, it was logical to assume she could contact him and that he would have some interest in talking to her. Although M.J. had worked for Bell for only a few weeks, the same reasoning applies. We believe the court correctly found that sufficient probable cause existed to issue the Glass warrant. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745—46, 13 L.Ed.2d 684, 689 (1965); Martel v. State, 511 P.2d 1055, 1055 n. 1 (Alaska 1973); Rosa v. State, 633 P.2d 1027, 1029-30 (Alaska App.1981).
Bell, relying on Spinelli v. United States, and Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), additionally contends that the search warrant should not have been issued because C.R. and M.J. were neither reliable nor credible. Bell’s reliance on the rulings in Aguilar and Spinelli is misplaced, because those cases set forth criteria for ascertaining the reliability and credibility of informants who have provided hearsay information. Neither C.R. nor M.J. was a confidential informant; both testified personally and were under oath at the time. The magistrate thus had ample opportunity to assess their credibility. Accordingly, the Aguilar-Spinelli standards do not apply in this case, and Bell’s argument is without merit.
Next, Bell argues that the recordings should have been suppressed because the police failed to comply with Alaska Rule of Criminal Procedure 37(b)(2), and because the police failed to mail a copy of the war
The court ordered that a copy of the warrant and receipt be mailed to Bell within ten days of May 27, 1980, when the warrant was executed. Officer George No-vaky stated in an affidavit that, although he did not specifically advise Bell of the recording at the time of Bell’s arrest and although Bell was not sent a copy of the search warrant, Novaky included information concerning the recording in police reports made available to Bell on June 16, 1980. Additionally, on June 13, 1980, Bell obtained actual notice of the recording when he appeared at a bail hearing with his attorney. At the bail hearing, Officer Michael Grimes testified that electronic surveillance was used to record Bell’s conversation. Bell’s attorney then declined to question Grimes, and the tape was played. It is unclear from the record whether Bell received notice of the recording in a copy of Officer Novaky’s complaint at the time of his arraignment on May 28, 1980; consequently, we assume that Bell first received notice at the bail hearing on June 13, 1980 —slightly more than two weeks after police recorded Bell’s conversations.
Under the circumstances, Bell has shown no prejudice stemming from untimely notification of execution of the warrant authorizing his telephone conversation to be monitored and recorded. Nor does it appear that the late notification was the result of bad faith on the part of investigating officers. We hold that the untimely notice to Bell did not justify suppression of the recording made pursuant to the Glass warrant. See Gallagher v. State, 651 P.2d 1185 (Alaska App.1982).
IV. COERCIVE INSTRUCTION DURING DELIBERATIONS
Bell argues that a supplemental instruction issued by Judge Souter was coercive and that it was essentially an “Allen charge.” 8 We disagree. During deliberations, the jury sent a note to the judge inquiring if inability to agree on one count of the indictment constituted a hung jury. The judge replied:
If you were to be unable to agree to a verdict on one Count of the Indictment, you would be a hung jury as to that one Count, but you would not be a hung jury as to the remaining Counts unless you were also unable to agree to your verdicts on them also. In my opinion you have not deliberated long enough yet to be able to validly reach the conclusion that you cannot agree to a verdict on any one or more Counts of the Indictment. [Emphasis added.]
The jury subsequently returned its verdicts on the four counts, as well as the two lesser-included offenses.
The Alaska Supreme Court proscribed
Allen
charges in
Fields v. State,
487 P.2d 831, 836 (Alaska 1971). In
Fields,
the jury was instructed, after extensive deliberations and at least two prior communications indicating a deadlock, that it was required to continue deliberations until a unanimous verdict was reached. This instruction was found to be so coercive as to require reversal of the conviction. We find that Judge Souter’s instruction lacked the coerciveness proscribed by
Fields.
We note in this regard that Standard 15-4.4(b) of the ABA Standards Relating to Trial by Jury specifically provides that a court may require continued deliberations if a jury is unable to agree.
9
In this case, the jury had not delib
V. DOUBLE JEOPARDY
Bell additionally argues that his sentences on Count 1 10 and Count IV 11 violate double jeopardy under Whitton v. State, 479 P.2d 302 (Alaska 1970). The Whitton court adopted the following analysis to determine whether or not a double jeopardy violation had occurred:
The trial judge first would compare the different statutes in question, as they apply to the facts of the case, to determine whether there were involved differences in intent or conduct. He would then judge any such differences he found in light of the basic interests of society to be vindicated or protected, and decide whether those differences were substantial or significant enough to warrant multiple punishments ....
If such differences in intent or conduct are significant or substantial in relation to the social interests involved, multiple sentences may be imposed, and the constitutional prohibition against double jeopardy will not be violated. But if there are no such differences, or if they are insignificant or insubstantial, then only one sentence may be imposed under double jeopardy.
Id. at 312 (footnotes omitted).
We must therefore compare AS 11.66.-110(a)(2) and
We must also determine whether such differences in intent or conduct are substantial in relation to the societal interests involved. As we have stated in connection with Bell’s mistake of age claim, AS 11.66.-110(a)(2) imposes criminal liability for non-forcible inducement of individuals under sixteen to engage in acts of prostitution with others. This liability is imposed without regard to any pecuniary gain on the part of the offender. We believe that the primary aim of this provision is to protect individuals, particularly those who are young and therefore more vulnerable, from being led into committing acts of prostitution by the efforts of others. By contrast,
VI. REFUSAL TO REDUCE SENTENCE
Finally, Bell contends that denial of the motion to reduce his sentence was error. While incarcerated prior to sentencing, Bell wrote a letter to L.S., the fourteen-year-old daughter of a fellow inmate. The letter was produced at the sentencing hearing, and the father of L.S. was called to testify. He stated that Bell had threatened him with violence if he did not testify favorably to Bell. Judge Souter stated that the threats convinced him to increase Bell’s sentence by one year. The judge stated that, although the letter could easily be interpreted as an attempt “to strike a sexual relationship” with L.S., he would give Bell the “benefit of the doubt” and not consider it in sentencing him. Later, Bell moved for reconsideration of the sentence, based on discovery of a letter from the father of L.S. to Bell; the letter indicated that the father had committed perjury at Bell’s sentencing. 12 A hearing was subsequently held on Bell’s motion to reconsider the sentence.
Judge Souter refused to reduce Bell’s sentence, reasoning that, in writing to L.S., Bell had been “attempting to arrange for [L.S.] to become a prostitute for him or to be involved with him in a sexual relationship.” The original sentence was based on Judge Souter’s belief that Bell had threatened L.S.’s father; at that point Judge Souter did not believe that Bell had “propositioned” L.S. On resentencing, Judge Souter changed his reasoning for Bell’s sentence; he was persuaded that L.S.’s father had lied, but he was also persuaded that Bell had been trying to establish a sexual relationship with the fourteen-year-old L.S. 13
Bell now claims that, because the trial court did not reduce his sentence after finding that Bell had not threatened L.S.’s father, double jeopardy was violated. However, he fails to cite any authority supporting his theory that failure to reduce a sentence may violate double jeopardy. Judge Souter’s reinterpretation of Bell’s letter to L.S. in light of the letter from
Bell also contends that the effective increase in the period of incarceration based upon the letter was not justified under the sentencing goals set forth in State v. Chaney, 477 P.2d 441, 442 (Alaska 1970). The fact that Bell attempted to arrange a romantic involvement with a fourteen-year-old girl while he was incarcerated for promoting the prostitution of another girl under the age of sixteen indicates a lack of remorse on Bell’s part and a greater need for deterrence of Bell himself; it therefore justifies imposition of a more severe sentence. We conclude that Bell’s sentence was not clearly mistaken.
The conviction and sentence are AFFIRMED.
Notes
.
PROMOTING PROSTITUTION IN THE FIRST DEGREE.
(a) A person commits the crime of promoting prostitution in the first degree if he
(1) induces or causes a person to engage in prostitution through the use of force;
(2) as other than a patron of a prostitute, induces or causes a person under 16 years of age to engage in prostitution; or
(3) induces or causes a person in his legal custody to engage in prostitution.
(b) In a prosecution under (a)(2) of this section, it is not a defense that the defendant reasonably believed that the person he induced or caused to engage in prostitution was 16 years of age or older.
(c) Promoting prostitution in the first degree is a class B felony.
The jury was instructed on the elements of this offense. The court then instructed that:
It is not a defense to the crime charged in Count I of the Indictment that the defendant reasonably believed that the person he induced or caused to engage in prostitution was 16 years of age or older.
The instruction proposed by Bell stated:
It is a defense to Count I of the indictment, Inducing a Person Under 16 Years of Age to Engage in Prostitution, that the defendant reasonably and in good faith believed that the female person was of the age of sixteen years or older, even though, in fact, she was under the age of sixteen years. If from all the evidence you have a reasonable doubt as to the question whether defendant reasonably and in good faith believed that she was sixteen years of age or older, you must give the defendant the benefit of that doubt and find him not guilty.
.
See also
Alaska Criminal Code Revision Part 4, at 103 (Tent. Draft 1977) (Commentary to
. See also State v. Rice, 626 P.2d 104, 115 (Alaska 1981) (Matthews, J., concurring) (a statute prohibiting the transportation of illegally taken game was overbroad, because it included “within its ambit the conduct of people who have no reason to believe that what they are doing is criminal”).
.In the landmark case of Regina v. Prince, L.4., 2 Cr.Cas.Res. 154 (1875), the defendant was convicted of taking a girl under sixteen years of age from under the care of her father, even though the defendant reasonably believed she was older. The defense of mistake of age was disallowed on the ground that removal of an unmarried girl from the lawful custody of her parents would have been a crime even had she been as old as he believed. Hence, the defendant acted at his peril.
.
(a) A person commits the crime of promoting prostitution in the third degree if, with intent to promote prostitution, he ...
(2) as other than a patron of a prostitute, induces or causes a person 16 years of age or older to engage in prostitution ....
(b) Promoting prostitution in the third degree is a class A misdemeanor.
. The jury was instructed:
[I] want to admonish the jury that there are portions of these tapes that are impossible to hear .... Consider only what you hear, only what you actually hear on the tapes, together with any other evidence .... But don’t speculate what is on the tape where there isn’t credible evidence .... The tapes are going to be hard to understand. Don’t guess at what’s on those tapes.
.
(b) Execution and Return With Inventory. The warrant shall be executed and returned within 10 days after its date. The officer taking property under the warrant
(1) shall give to the person from whom or from whose premises the property was taken a copy of the warrant, a copy of the supporting affidavits, and receipt for the property taken, or -
(2) shall leave the copies and the receipt at the place from which the property was taken
. Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).
. ABA Standard Relating to Trial by Jury § 15-4.4(b) (1980) provides:
If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
The Commentary to Standard 15 — 4.4(b) states:
This paragraph confirms that a trial judge may send the jury back for further deliberations notwithstanding its indication that it has been unable to agree....
There is no coercion if a court requires jurors to deliberate a reasonable length of time.
. Bell’s conviction on Count I was for inducing or causing a person under 16 years of age [D.W.] to engage in prostitution, AS 11.66.-110(a)(2). See supra n. 1.
. Conviction on count IV was for violating
(a) A person commits the crime of promoting prostitution in the second degree if he
(1) manages, supervises, controls, or owns, either alone or in association with others, a prostitution enterprise other than a place of prostitution ....
[A]n arrangement in which two or more persons are organized to render sexual conduct in return for a fee.
The jury was instructed in the language of both these statutes.
. The letter from L.S.’s father, written to Bell prior to his sentencing, contained a postscript which stated, “Tell [L.S.] I love her and when I write I’ll tighten it for you. I’ll get you a picture ‘a pose’.”
. Judge Souter stated:
The court was not persuaded of this fact when the presentation of evidence concluded at the sentencing hearing, but the contents of the postscript [on the letter from L.S.’s father to Bell] have caused the court to re-examine this question and to resolve it contrary to the way it was resolved at the sentencing hearing.