*1 claims, maining potential it was incumbent on hearing on the time the court schedules case, however, why attorney explain the su- the court new to to petition. James's this Hemby effectively col- perior court allowed had no further he concluded James litigation of James's Keller to bifurcate to raise. orable issues lawyers to giving the more time petition-by after
investigate pursue additional claims already the witness decided
the court had
recantation claim. they
Shortly after secured this bifurcation Hemby litigation, and Keller moved case, they alleging that from the
withdraw newly-arisen of interest. conflict had MANESS, Appellant, ap- Bret F. motion and granted this superior court attorney represent James. pointed a new attorney who filed state- It was this new Alaska, Appellee. STATE of 85.1(f)(2), Rule declar- ment under Criminal no colorable claims ing that James had No. A-7292. present. Appeals of Alaska. Court facts, James never
Under these unusual firm) (or attorney who reviewed a law July potential claims and then selected all of his actively litigated. be one or more of them to (with
Rather, the tacit Hemby and Keller court) superior selected one
approval of the time, while, at the litigate same
claim go potential claims unexa- other
let James's superior heard and After the court
mined. (the claim witness rejected their one selected claim), Hemby Keller with-
recantation superior court from the case and the
drew attorney to obliged appoint another remaining potential
investigate James's post-convictionrelief.
grounds for cireumstances, agree these Under governed rule
my colleaguesthat the Griffin attorney's obligations to James
this new attorney's assignment The new
to the court. potential remain to review all of James's which of them should
ing claims and deсide litigate was to litigated. His decision
be type "not
none of them. This is contemplated [by court
tactical choice Supreme] Court
Tucker and Rather, type of decision
Jones "5
governed by superior court had Griffin. attorney duty pro new to ensure that the representation Be
vided zealous to James. attorney
cause the had had no hand new prior litigation recantation of the witness
issue, attorney was and because the new
solely responsible evaluating re James's C.J.). App. 1988) (concurring Bryner, opinion of Hertz *2 Mason, McCready, Ashburn and
Donna J. P.C., Appellant. Anchorage, for Rosenstein, M. Assistant Attor- Kenneth General, ney Special Prosecutions Office Appeals, Anchorage, and Bruce M. Bo- General, Juneau, telho, Attorney Appel- lee. Judge, COATS,
Before: Chief STEWART, Judges. MANNHEIMER and OPINION Judge. COATS,Chief killed Bret F. Maness November during a confrontation front Delbert White apartment. While the reasons of Maness's disputed, it is clear the confrontation are 21, 1997, involving a con- two counts of misconduсt White went that on November two-by-four degree: apartment with a trolled substance the fourth ground- in a Maness lived confront Maness. a structure used for wife, Tina Maness. apartment with his level distributing a substance and a friend, Hackett, apart- A Paul lived of one or more second for the Manesses. Maness was ment below jury acquitted marijuana. The *3 ar- apartment with Hackett White his drug charges. the other subsequent In con- rived at his door. Maness to a com- Judge Souter sentenced frontation, in resi- started which Maness's years posite eight with three sentence driveway, Maness and ended dence years suspended: years with two sus- six paramedics police and shot White. When during pended possessing a firearm scene, lying in a arrived at the White was felony drug of a offense and two commission paramedics White to pool of blood. The took year suspended years with one on each con- hospital, police a and the took Maness and involving a of misconduct viction custody. police entered Hackett into (to degree con- in the fourth run substance apartments and Hackett's both Maness's weapons possession secutively to the sen- suspects. possible victims or look for other convictions, tence). appeals Maness apart- police entered Maness's When the Ma- raising arguments. We reverse several ment, weapons saw possession of a firearm ness's conviction for police applied for a search war- plants. The during drug offense. We otherwise their observations and seized rant based on affirm his convictions. evidence. being resulted in Maness The incident degree suppress evidence
charged in the first Mamess's motion to with murder White, degree in killing police second misconduct obtained from volving weapons 2(possession of a firearm entering his residence felony drug of a of during the commission indictment, Following his Maness fense), of misconduct involv and four counts suppress the evidence the filed motion deg in the fourth ing a controlled substance they entered his resi police obtained when for: ree3 that the search dence. The state contended a) maintaining keep a structure used for justified by protective sweep excep was distributing ing contrоlled subs requirement-that warrant tion to the tances,4 police to enter Maness's residence needed b) mariJ possessing one or more of to believe they had reasonable cause because uana,5 safety danger from addi their was c) possessing with intent to deliver posed a threat to officers suspects who tional marijuana,6 or more of ounce claimed that the at the seene. The state also d) twenty-five more possessing by emergency justified aid search was pl ants.7 requirement-that exception the warrant police to search Maness's resi needed charge Maness defended the murder people make other had dence to sure contending that he acted self-defense. evidentiаry Following injured. been jury acquitted of the murder Judge accepted the state's hearing, Souter charge that arose out and all lesser offenses convict, justified be contention that the search was death of White. during cause the ed of a police Maness of reasonable cause to firearm had safety danger, their felony drug offense and believe the commission of a 11.16.110(2)(B). 11.71.040(a)(3)(F); 11.41.100(a)(1)(A). 5. AS AS 1. AS 11.16.110(2)(B). 11.61.195(a)(1); 2. AS AS 11.16.110(2)(B). 11.71.040(a)(2); 11.71.040(a). 3. AS 11.16.110(2)(B). 11.71.040(a)(3)(G); AS 7. AS 11.16.110(2)(B). 11.71.040(a)(5); 4. AS protective suspects might apartments inbe or that permissible under thus was Ma- there be additional victims. exception. Therefore he denied sweep Souter, suppress. motion to ness's concluded that this informa- Souter however, rejected the state's contention entering justified police tion emergency justified under the the search was apartments, adja- and Hackett's which were appeals Sout- aid exception. driveway. to the He found the cent suppress. his motion to er's denial of shooting had information of an earlier inci- report crazy man dent and a Alaska, falls prove a search shotgun. gave information This sweep exeeption protective within the safety reasonable cause to believe that their prove state must requirement, warrant danger suspects additional because that: might be within the He also apartments. search, 1) the offi- engaging in the before narrowly limited found that the officers *4 cause to believe cers had reasonable to a reasonable area. And he their search danger in safety that their was because police to have found it was reasonable for those un- suspects-beyoud additional thirty minutes after entered the residences present police control-were and der they had arrived at the scene because and posed a threat to the officers things re- officers had several different that narrowly limited to areas the search was quired their attention before could dangerous could find where the officers dying, victim who was a erowd search-a persons.8 forming, arriving at the and other officers police Judge found credible tes- Souter thirty- Judge scene. concluded the Souter safety danger in timony that their and undermine the conten- wait did not minute. narrowlylimited. At that their search was nеcessary tion that the for officer search hearing, Anchorage Police Officer Richard safety. message a testified that he received Jensen that did not err conclude Souter We dispatcher that a shot had been from suppress. denying in Maness's motion to injured at and that an individual was fired findings support His conclusion approached the Lois Drive. As he 3804 grounds police had reasonable to conduct a scene, security guard, Edward a uniformed protective sweep of residence. pointed that a Spencer, to the scene and said crazy man was down the street with a shot- involving The instruction on misconduct proceeded to the and gun. Jensen scene saw weapons degree in second pointed Manеss with a rifle. Officer Jensen jury Manegs of miscon- convicted handgun at and ordered him to Maness weapons degree. in involving duet the second drop gun, which Maness did. Jensen and 11.61.195(a)(1)prohibits Alaska Statute lying on other officers saw White face down during a firearm the commis driveway large pool a blood. drug felony sion offense:. a custody, into took Maness Hackett (a) person A crime of miscon- commits the Ac- paramedics arrived to treat White. involving weapons in duct second de- Gifford, cording Lt. also to William ' knowingly gree person if the been told that earlier someone Ma- had (1) during possesses a firearm the com- shooting towards ness's residence been under AS 11.71.010- mission of offense pellet gun a or a'.22 another residence with involving a сon- 11.71.040 [misconduct that had come over to Maness's White second, third, first, in the trolled substance shooting of this earlier residence because degrees]. and fourth Lt. Gifford made the decision incident. apartments Drive This case is controlled Collins State.9 enter the two at 3804 Lois Collins, enacting that in we concluded concerned that other armed because he was 741, State, (Alaska 374, App.1999). Earley 752-53 P.2d 376 9. 977 P.2d 8. See 789 App.1990); Murdock v. 664 P.2d 596 (Alaska App.1983); Spietz, State v. (Alaska 1975). involving weap second-degree misconduct 11.61.195(a)(1), legislature did not intend on. person every where a criminalize situation felony drug simultaneously offense commits maintaining over a possesses or exercises on a structure The instruction control concluded "AS keeping We contrоlled substance
firearm.10 used for 11.61.195(a)(1) proof be requires nexus argues Souter firearm possession of the tween a defendant's in how he instructed the plainly erred commission of and the defendant's charge of a structure on the trial occurred be drug offense." Maness's used for controlled substances. trial, At fore our decision Collins. 11.71.040(a)(5) states: Alaska Statute required to court was contended 17.30, (a) Except as authorized AS a nexus must exist instruct the crime of miscon- person commits felony drug and the offense between involving substance a controlled duct support a conviction. possession to firearm degree if the the fourth request. denied Maness's Souter argued During closing arguments, the state if convicted jury that Maness could be
to the
(5)
any
knowingly keeps or maintains
while
firearms in his residence
he
warehouse,
store,
dwelling,
shop,
build-
there,
if the fire
grew marijuana
even
he
vehicle, boat, aireraft,
other
ing,
drug
to the
offense.
bore no connection
arms
used for
place
structure
*5
distributing controlled sub-
keeping or
points out that
appeal, Maness
On
felony
{our
a
offense
stances
violation of
jury
conflicts with
instruction
Souter's
chapter
17.30[.]
or
under this
argues that we
The state
in Collins.
decision
Collins,
to
but we decline
overrule
should
jury that Ma-
instructed the
Souter
this court
note that
revisit our decision. We
violating
convicted of
ness could be
Collins in both
continued
follow
has
11.71.040(a)(5)
jury
the state
Lewis
if the
found
Murray v. State.13
State12
proved:
argues
the evidence
that
The state also
First,
at
questiоn
occurred
the event
a nexus be
presented at
trial established
Anchorage and on or about No-
near
or
a firearm and
possession of
tween Maness's
21, 1997;
vember
maintaining
dwelling for
a
drug offense of
his
Second,
knowingly used
that
... Maness
sub
keeping a controlled
purpose
dwelling
...
another to use the
or allowed
argu
problem with the state's
stance.
distributing
keeping or
controlled
for
a
merely
that
it
establishes
ment
felony
offense
in violation of
substances
returned
jury could have
instructed
properly
V,
or VII of the
charged Count VI
as
on this count.
to the state
a verdict favorable
indictment; and
not allow
instruction did
Souter's
Third,
knew said
[Maness]
of the
jury
the nexus element
to consider
keeping
dwelling
for
or dis-
... was used
conviction, we
affirm Maness's
offense. To
tributing controlled substances.
failing
the error
have to find that
would
jury
object
instruction.
not
Maness did
was
jury on the nexus element
instruct
beyond
argues
doubt.14 We
had to
appeal, Maness
a reasonable
the state
harmless
On
11.71.040(a)(5)
us,
element of AS
prove as an
do so. On the record before
cannot
dwelling
of the
purpose
that a substantial
reasonably could have found no connec
distributing controlled
marijua
keeping or
was for
possession
tion between
substances,
activity
under the
prohibited
the firearms. Ac
possession na and his
(not a
ongoing
continuous
was
or
conviction of
statute
cordingly, we reverse Maness's
784,
(Alaska App.2000).
13. 12 P.3d
794-95
id. at 753.
10. See
Id.
(Alas-
State, 658 P.2d
Carman v.
See
App.1983).
ka
(Alaska App.2000).
12. 9 P.3d
1037-38
instance),
points
jury rejеcted
possession
out that
and the
single, isolated
charging
possessing
merely
the count
not
substance was
of the controlled
purposes of distribution. He
for
personal use.
for
argues
that he should
be convicted of
required ele
summarized the
This court
maintaining
keeping
used for
a structure
11.71.040(@a)(5)
in Dawson
of AS
ments
controlled substance when the
did not
State:15
anything
find
But,
-
personal
than
other
use.
a violation of AS
establish
[TJlo
11.71.040(a)(5) prohibits knowingly keeping
11.71.040(2)(5),
prove that
the state must
dwelling
"that
is used for
or
accused,
knowingly controlling
while
or
keeping
distributing
or
controlled substances
having authority
control
knowingly
felony
plain
in violation of a
offense." The
statute,
property
type
listed
language
appears to
of the statute
eriminal-
knowingly
property
personally used
beyond maintaining
ize behavior
the struc-
person to
permitted another
use
distributing
ture for
controlled substances.
distributing
prohib
purpose of
in a manner that
ited
substances
plain
We are to find
error
to a
under Alaska law.
amounts
conclude that the error was so obvious
we
prove
property
The state need not
any competent attorney would have
purpose of
was used for
the exclusive
objected
been aware of the issue and
distributing
keeping or
controlled sub
obviously prejudiced
defendant was
stances, but such use must be a substantial
by the
failure
raise
issue.17 We de
property,
purpose of the users
plain
cline to find
error.
use must bé continuous to some de
argument,
In a related
Maness contends
gree;
property
incidental use of the
presented
that the evidence the state
at trial
distributing drugs
single,
keeping or
or a
support
insufficient to
his conviction un-
activity
drug-related
isolated occurrence of
11.71.040(a)(5)
der AS
because he
purpose with which a
will not suffice. The
*6
But,
marijuana
personal
the
for his
use.
as
property
whether
such
uses
above, the
pointed
we
out
statute does not
issues of fact to be
use is continuous are
only
restrict
the crime
to instances where
totality
on the
of the evidence in
decided
purposes
someone maintains
structure
case;
required
the state is not
each
distributing a controlled
of
substance.
single specific
prove more than a
incident
involving
the
or distribution of
jury
on misconduct
involv-
The
instruction
drugs
continuity
if other evidence of
exi
ing
the
a controlled substance in
fourth
sts.16
possession
pound
degree
of
marijuana
more of
growing
It is uncontested that Maness was
charged
with violat
marijuana.
The state
a substantial amount of
When
11.71.040(a)(8)(F),
prohibits
plants, they
ing
which
stripped
the state
and dried the
AS
pounds marijua~ yielded approximately 8.7
of
preparations,
of "one or more
mixtures,
compounds,
or substances of an
presented
na. The
at trial estab-
evidence
aggregate weight
pound
of one
or more con
lished that Maness used a substantial amount
grow marijuana.
taining
VIA controlled substance."
living space
of his
Be-
a schedule
charge.
marijuana growing oper-
jury
guilty
of this
cause Maness had a
The
found
ation,
objects
Judge
apparent
presence
it
of Maness
to the instruction
seems
the
marijuana
gave
jury.
points
the
He
to testi
residence was not a
Souter
the
"single,
drug-related
mony
portion
of the
isolated occurrence of
a small
mari
bud,"
commonly
activity"
growing oper-
juana plant,
but was a continuous
"the
marijuana.
ation.
as
He contends
under
(Alaska
App.
App.1995).
have considered more
the
of the
"knowingly possess[ed]
aggregate
he
an
marijuana
calculating
weight
the
of
bud
a weight
pound
of one
or more of ...
[a]
plant
live
under AS compound[]
containing
marijuana."
...
...
11.71.040(a)(B)(F), which was error.
We conclude that
did not еrr
Souter
requires analysis
This issue
of three statu-
giving
In
the instruction.
Gibson v.
tory
sections: AS
AS State,18
determining
we held that
11.71.900(14).
11.71.080,
first,
and AS
weight
processed marijuana,
of
all that was
11.71.040(2)(8)(F),
pos-
criminalizes the
necessary to convict under
the statute was
pound
marijuana.
of a
or more of
session
"that the substance
mari
delivered contains
states,
second,
11.71.080,
pur-
"For
aggregate weight
and that the
of the
Juana,
calculating
aggregate weight
poses of
of
statutory
requireme
substance meets
marijuana plant,
aggregate weight
a live
Gibson,
nt.19 We also held in
weight
of the
shall be
language
used form"
from AS
And,
reduced to its
used form."
calculating
11.71.080"refers to the method of
third,
11.71.900(14),
"marijua-
defines
aggregate weight
of live
seeds,
leaves, buds,
na" as "the
plants."
plant"
flowers of the
but not thе resin or oil
State,21
In
Atkinson
we discussed the
stalks,
plant, the
from the
or sterilized seeds.
applies
law that
when the
must decide
jury:
Souter instructed the
aggregate weight
of
live
seeds,
leaves,
"Marijuana" means the
plants.
pointed
determining
We
out that
flowers,
but not
the stalks or
buds
weight marijuana plants,
marijua
marijuana plant
...
roots of the
whether
purest,
na did not
"to
have
be reduced
its
,
growing or not.
form;
statutory
aggregate
unadulterated
purposes
calculating
aggre-
For
weight must instead be based on the 'com
gate weight
plant,
live
22 Atkinson,
monly used form.
we con
weight
aggregate
weight
shall be the
admitting
cluded that the court
not err in
did
when reduced to its com-
expert's testimony considering
aggre
monly used form.
gate weight
marijuana,
though
even
Further,
he instructed the
to con- marijuana
twigs
included stems and
11.71.040(a2)B)(F),
viet Maness under AS
part
were not
definition of
"knowingly possess[ed]
had to find that he
an marijuana.23
We concluded that the
aggregate weight
of one
or more of
question
a factual
compound[]
containing
...
[a]
... mari-
jury.24
*7
juana."
State,25
recently,
in Pease v.
we
More
Maness contends that
Souter erred
again
in
discussed what could be included
giving
in
argues
this instruction. He
that
calculating
aggregate weight
the
of live mari
testimony
only
the
.at trial
that
established
plants:
Juana
growing marijuana plant
the bud of a
would
Therefore,
grower pos
To determine whether
the
normally
marijuana.
be used as
pound
marijuana,
marijua-
sessed
or more of
the evidence at trial established that
na,
form,
simply
the
could
cоmmonly
when reduced to its
cut down the
used
plants
argues
weigh
practice,
and
them.
is
the bud. He
that
Sout-
allowing
in
job
grower
er erred
to consider the
had to finish the
that the
is,
weight
parts
marijuana plant,
begun-that
of other
of the
had to cut down
(AlaskaApp.1986).
18.
P.2d
687
23.
Id.
19. Id. at 690.
Id.
Id.
(Alaska App.2001).
25.
22. Id. at 494. presented state sufficient evidencefor dry, and then cut them to plants, allow beyond juror to conclude a rea leaves, buds, a reasonable flowers from the and grow doubt that Maness "one or prosecute the sonable they were to stalks-if mixtures, preparations, compounds, more 11.71.040(2)(8)(F).26 er under AS aggregate weight of an of one substances Here, presented evidence that the state containing" marijuana and pound or more plant is the most although the bud of marijuana plants came live that from marijuana, marketable and desirable form had been reduced to its used are have value and plant the leaves of the form.2 Furthermore, the by marijuana users. used marijuana includes definition of sentencing Presentence and issues report leaves, buds, seeds, and flowers" "the concerning Maness raises several issues prior marijuana plant.27 case law Our contested items that were included including marijuana also consistent report sentencing presentence issues. weight determining the of live mari leaves in reversing convic- Because we are Sout juana plants. We conclude involving weapons in tion for misconduct giving an instruction that did not err er case, remanding degreе second we marijuana consider the allowed the unnecessary find it these issues. address marijuana in commonly used deter leaves as weight marijua mining aggregate of the | Conclusion na. involy- Maness's convictionfor misconduct ing weapons degree is RE- second Sufficiency the evidence for miscon- His two convictions VERSED. pound charge possessing involving in the duct a controlled substance or more of degree are AFFIRMED. fourth Maness next contends state MANNHEIMER, present Judge, evidence for the
did not sufficient concurring. possessing him one or more jury to convict writing separately to address two am marijuana. renews his pounds of (1) legal problems in this case: the definition jury only have argument should "commonly form"of of the used the live considerеd the bud from (the phrase 11.71.080 to define used weight. determining aggregate plants its punishable weight of live reject above. Maness We contention (2) plants), and whether a who also contends some possessing a or more of convicted of to non-consumable was due can also be con- in their residence (dimes, nail, non-marijuana objects separate felony of victed material). stems, roaches, stalks, and charred sub- building of controlled 11.71.040(a)(5). stances, AS presented that the mar- The state evidence ijuana apartment seized from Maness's mari- is the What form" of pounds. weighed approximately 4.18 *8 Juana? packaged marijuana that was with unuseable Therefore, prosecution un purposes of criminal weighed For mаterials 7.66 ounces. 11.71, defined legislature the has for- der AS excluding packages the that contained seeds, leaves, marijuana marijuana, [fertile] as "the objects non-usable the eign buds, plant (genus) the Canna pos- and flowers of presented state evidence (ex- bis, growing marijuana whether or not".1 pounds of sessed 3.7 "usable" (as as many marijuana plants well seized seeds, stems, stalks, cluding and other non- marijuana) from Maness's portions marijuana). some harvested usable of 11.71.040; AS 11.71.080. 28. AS see 26. Id. at 788-89. 11.71.900(14). 11.71.900(14). 1. AS 27. AS 1136 is, marijuana-that statutory For Adhering to the defini unharvested
residence.
plants-the
legislature
provided a
live
has
marijuana,
the
harvested and
of
tion
from Maness's
determining
punish-
the leaves and buds
the
dried
different method for
marijuana.
11.71.080
weight
able
the
and buds
marijuana рlants. After
leaves
calculating
purposes
of
dry, they weighed
"[flor
1674
declares
grams-approx
were
aggregate weight of a live
Adding
the
imately
pounds, 11 ounces.
in the
3
aggregate weight
shall be the
marijuana,
plant,
al
the
the State
previously harvested
to its
weight of the
when reduced
nearly
pounds
4
leged
that Maness
State,
In Atkinson v.
used form."
marijuana.
of
App.1994),
P.2d
prosecuted
posses-
person
is
When
any dispute
con-
ruled that
as to what
court
marijuana,
of their
of
the seriousness
sion
"commonly
form" of mari-
the
stitutes
depends
weight
the
of the mari-
on
offense
juana
question
of fact to be resolved
drug
juana.
purposes
of Alaska's
jury.
the
statutes,
process
weighing
of
the
straightforward process of
not involve a
does
At
point
thе
of contention.
Here lies
leaves, buds,
seeds,
and flowers
placing the
trial,
testimony
presented
that-at
they weigh.
seeing how much
on a scale and
marijuana milieu-the
least
in the current
Instead,
legislature
special
the
has enacted
part
only
used"
of
buds are the
weight
determining
punishable
rules for
marijuana plant;
the leaves are
consid
marijuana.
of
away.5
and are thrown
Based
ered "trash"
testimony, and based on the fact that
on this
form,
in harvested
When
marijuana was in the
almost all of Maness's
weight
only the
punishable
includes not
superi-
plants, Maness asked the
form of live
seeds,
leaves, buds, and flowers themselves
(1)
they
court
to instruct
or
weight of whatever else these
also the
but
disregard
weight
of the leaves
should
plant parts
bе mixed with. Under AS
(2)
they
plants,
from his
harvested
11.71.040(a)(8)(F), person commits the class
felony possession
of
of
could convict Maness
fourth-degree
controlled sub
C
proved
if the
State
they
or
possess
if
"one
stance misconduct
plants weighed
one
those
at least
buds from
mixtures,
preparations,
compounds,
or
more
pound.
weight
one
aggregate
of an
substances
containing [marijuana]". As
pound or more
judge
give
such an
The trial
refused
this court noted
Gibson
Instead,
judge
instructed
instruction.
(AlaskaApp.1986),this statute is worded
all
of the statutes discussed
on
three
marijuana in a
of actual
so that
the amount
(a)
mari-
definition of
above:
long
compound or mixture is irrelevant.
So
(b)
defining
juana,
punishable
the statute
compound or mixture contains some
as the
to the "com-
weight
plants
live
as limited
marijuana,
person's of
small amount of
(c)
monly
marijuana, and
used form" of
gauged by
weight of
fense will
the total
be
statute,
11.71.040(2)(8)(F), which
charging
Thus,
mixture.2
compound
or
any
prohibits possession of
marijua
joints of
possesses
who
two or three
having
marijuana compound
mixture
misdemeanor,3
if
guilty
B
but
na is
of a class
or more.
aggregate
they
mix
amount of
into
this small
brownies,
instructing
jury on all three
By simply
pan
are
a milkshake or a
guilty
felony.4
relationship
of a class C
specifying the
statutes without
(March
2002).
Opinion No. 4541
orandum
Gibson,
tween ("usable form"), wording legis- suggested Hickey Department Prosecutor Daniel of the form"-thus lature chose used discussing how the of Law. The two men are engendering legal issue that Maness rais- compounds aggregate weight normal test es. marijuana was apply mixtures would plant: live seized in the form ofa colloquyin the House Finance Com- However, issue. ... if Mr. mittee does not resolve this Representative Cotten asked interpretation I conсlude that Maness's Hickey go [that] had indicated he wouldn't rejected because it is the statute must be by instead [but] the strict letter of the law ultimately illogical. way] interpret law in a he [the . would thought ... would be more rational. Mr. interprets AS 11.71.080to mean Hickey agreed had said [that this]. he plants, find that when [ap- Representative [that] Cotten said this punishable weight plants of these is limit- proach consistent the bill with] wasn't commonly used ed to the of the most constrained, Hickey Mr. said tech- [that] part plants-the Yet if the of the buds. reading aggregate weight test nical minutes after these same arrived weighsin going plant to mean that if a is harvested, punishable weight plants were content, entirety 4 its ounces and has THC would be determined conceivably support prosecution it could leaves, marijuana-seeds, weighing all of the originally As draft- [Note: under bill. buds, grower's posses- flowers-in ed, punish 11.71 did not disparity appears to make no sion. This in an amount less than sense, convincing ratio- and Maness offers no ® ounces.] explain nale to it. Representative it was [if Cotten asked I concludethat the State's inter- therefore Hickey's possible Mr. intent wouldn't that] pretation of the statute is correct: when AS prosecute, somebody else's be to but "marijuana ... 11.71.080 refers to reduced to might. Hickey agreed Mr. this form", commonly [that used the statute its suggest- possible]. Representative Cotten speaking of as defined 11.71.900(14)-i.¢., seeds,leaves,buds, ought the law to be re-written. [that] ed fertile Hickey maybe it Mr. said not [that] this has been flowers-after [be], ought written. but be better [could] "reduced its used plant harvested from the and dried. Representative if [Mr. Cotten asked Hickey Hickey] any suggestions. Mr. (I that, Atkinson, acknowledge [possibility] say "4 [that] said suggested marijuana in "com its court plants", but then of] ounces or monly form" include small X-[number big you get how into the battle of things that are not defined as amounts of further discus- plant be. There was [can] 11.71.900(14)-things "marijuana" under AS Hickey Mr. said a more rea- [that] sion. such as stems and other detritus.8 approach attempt would be case, resolving it is purposes sonable For thing of ... define the sub- necessary inter to decide whether terms stance, weight of con- the aggregate which re-evaluat pretation of the statute should be marijuana, [as and the substance tains ed.) al form, whole is in some kind of usable above, explained in Maness's As form that has can be reduced to usable [a] \ choose between two com- case was asked to weight. specified] [the 11.71.080; interpretations of peting (which interpretation conclude upshot of this discussion was AS State's 7 correct) (which, interpretation and Maness's 11.71.080. (%e., History Legislature & February Senate Bill weeks after this See Alaska State 7. On two Index, 1981-82, p. discussion}, Journal passed ver- the House an amended (re-engrossed)- am sion of SB 190-SB 190 H newly-drafted that contained a AS 11.71.080. at 494. Atkinson, 8. See
1139 recognized here, other courts have I conclude Several explained the reasons for danger interpretation in- of their that a broad rejected). Because be should law, subject error would home question of "crack house" statutes terpretation is a punishment this issue. for what jury to resolve owners to double to ask the possessing essentially have favored act this error could one of because illegally Maness, drugs. jeopardy prob harmless. the error was To avoid this double lem, their "crack these states have construed possessing a is convicted When of separate conviction house" statutes to allow marijuana in their more pound or of guilty engaging of only if the homeowner residence, also convict can the State activity illegal drug other than continuing felony separate maintain- them the drugs. v. of simple possession of See State of building keeping con- ing a of 346, 160, 12 Wash.App. P.3d Ceglowski, 103 11.71.040(a)(5)? substances, trolled State, 986, (2000); v. 872 P.2d 989 163 Meeks State, violating was convicted Howard v. 815 (Okla.Crim.App.1994); 679, (Okla.Crim.App.1991); Barnes 11.71.040(a)(5), P.2d 683 "crack house" stat Alaska's 396, State, 229, felony 339 234 v. 255 Ga. S.E.2d it is a statute declares that ute. This any State, 39, "knowingly keep[] (1986); maintain[] or Md.App. v. 19 308 Tucker (1973). 696, A.2d 699-700 or dwelling, building, ... or other structure distributing place that is used for Annotation, Validity and Con- See also in violation of a substances Criminalizing the struction State Statutes by or AS 17.80". 11.71] [defined offense Permitting Property Real to be Used Act of 402(a)(5) § language from This is derived Activities, Ilegal Drug with in Comnmection Act Substances the Uniform Controlled 428, (1994), § which lists 24 AL.R5th 8 9 (1970) that "crack cases in which courts have held argues that this statute appeal, Maness proof prem- On require house" statutes guilty are apply people who does manufаcture, sale, dis- ises are used for simply possessing controlled substances tribution, by or use of controlled substances (Maness was personal in their homes. use premis- than the owner of the someone other marijuana with charged with es. sell, acquitted he was of this intent but Nevertheless, controlling prece- Alaska felony marijuana charge. conviction was His State, issue, 766 P.2d on this Davis v. dent the fact that he based on (Alaska 41, reject App.1988), appears to 46 more.) pound or Moreover, regard to the position. this argument this in the Maness did not raise states, of their from other some decisions superior He therefore must demon- court. differently statutes are worded somewhat judge plain committed the trial strate Alaska's, are and thus these decisions from recognize purported failing to error (I note, potentially distinguishable. at least 11.71.040(a)(5) limitation on the reach of AS however, Washington Georgia, like it. instructing the about and then essentially Alaska, taken their statutes have Sub- my from the Uniform Controlled expressed concern verbatim previously, I have Act.) cireamstances, that, Alaska's stances some under if a jeopardy clause be violated double reasons, that even these conclude For separate received convictions defendant presented a colorable though Maness has drugs possessing and for plain demonstrated argument, he has not building keep those same
dwelling error. my drugs. concurrence Tunnel See State, App. Opinion Alaska Memorandum (October 3, 2001), slip opinion at
No. 4465
21-283. 229, (1986). State, 231 S.E.2d
9. See Dawson App.1995); Ga. Barnes v.