The Alaska Misconduct Involving Weapons Statutes: a History and Analysis

• Publication year: 2003

§ 20 Alaska L. Rev. 335. THE ALASKA MISCONDUCT INVOLVING WEAPONS STATUTES: A HISTORY AND ANALYSIS

Alaska Law Review
Volume 20
Cited: 20 Alaska L. Rev. 335

THE ALASKA MISCONDUCT INVOLVING WEAPONS STATUTES: A HISTORY AND ANALYSIS

John D. Fred ^[*]

I. INTRODUCTION

II. ALASKA'S MISCONDUCT INVOLVING WEAPONS STATUTES

A. Statutory Framework

B. Judicial Interpretation

III. THE FEDERAL FRAMEWORK: 18 U.S.C. 924(C)

A. The Original Enactment

B. Judicial Interpretation of the "Uses or Carries" Standard and the Congressional Response

IV. A BRIEF ASIDE: WHY REQUIRE A NEXUS?

V. ALASKA'S FRAMEWORK FOR ESTABLISHING A NEXUS UNDER SECTION11.61.195

A. The Murray Factors

B. Case-by-case Application of the Murray/Ceballos-Torres Factors

VI. THE FUTURE OF SECTION 11.61.195

VII. CONCLUSION

FOOTNOTES

This Note examines the Alaska Misconduct Involving Weapons statutes, concentrating on their history and on two Alaska Court of Appeals decisions interpreting them. The Note also considers the federal statute upon which the Alaska statutes and their judicial interpretations are based. Finally, the Note invites the Alaska Legislature to respond to the court's decisions by amending and clarifying the statutes.

I. INTRODUCTION

In 2002, the Alaska Court of Appeals decided Murray v. State. ^[1] In Murray, the court of appeals interpreted Alaska Statute section 11.61.195, which prohibits the possession of a weapon while committing a number of specified drug offenses. ^[2] Drawing upon its previous decision in Collins v. State, ^[3] the court laid out a set of factors to assist a trial court in determining whether a nexus between a weapon and an underlying offense has been proven under the statute. ^[4] These factors were taken from a series of federal appellate cases interpreting 18 U.S.C. 924(c)(1). ^[5]

[*pg 336]

This Note asserts that, for better or worse, the Murray court implied that the federal and state statutes, while differing slightly, should essentially be interpreted in the same manner. Accordingly, in order for practitioners, judges, and legislators to understand how the case will affect Alaska jurisprudence, a fundamental understanding of the federal statute is needed. This Note sets out the texts, legislative histories, and interpretive jurisprudences of each statute, and compares the substantive points of the statutes. Next, the Note analyzes Murray in detail, paying special attention to the federal decisions that spawned the factors cited by the Alaska court. Finally, the Note encourages the legislature to clarify its intent by amending the statute or by announcing that the court of appeals' interpretation is indeed consistent with the legislature's actual intent.

II. ALASKA'S MISCONDUCT INVOLVING WEAPONS STATUTES

A. Statutory Framework

In 1992, the Alaska Legislature enacted the Anti-Violent Crime Act. ^[6] Section 10 of this Act changed the title of the existing misconduct involving weapons statute to Misconduct Involving Weapons in the Third Degree and inserted the more serious crimes of Misconduct Involving Weapons in the First Degree and Misconduct Involving Weapons in the Second Degree. ^[7] In pertinent part, the Act provided:

AS 11.61 is amended by adding new sections to article 2 to read:

Sec. 11.61.190. MISCONDUCT INVOLVING WEAPONS IN THE FIRST DEGREE.

(a) A person commits the crime of misconduct involving weapons in the first degree if the person uses or attempts to use a firearm during the commission of an offense under AS 11.71.010 - 11.71.040.

(b) Misconduct involving weapons in the first degree is a class A felony.

Sec. 11.61.195. MISCONDUCT INVOLVING WEAPONS IN THE SECOND DEGREE.

(a) A person commits the crime of misconduct involving weapons in the second degree if the person knowingly

(1) possesses a firearm during the commission of an offense under AS 11.71.010 - 11.71.040; or

[*pg 337]

(2) violates AS 11.61.200(a)(1) and is within the grounds of or on a parking lot immediately adjacent to

(A) a public or private preschool, elementary, junior high, or secondary school without the permission of the chief administrative officer of the school or district or the designee of the chief administrative officer; or

(B) a center, other than a private residence, licensed under AS 47.35.010 - 47.35.075 or recognized by the federal government for the care of children.

(b) Misconduct involving weapons in the second degree is a class B felony. ^[8]

These provisions can be classified as the Alaska "use statute" (section 11.61.190(a)) and the Alaska "possession statute" (section11.61.195(a)(1)). ^[9] The parts of the statutes with which this Note is concerned -- the actual "use" and "possession" components -- apply to certain drug-related violations of the Alaska criminal code, including delivery, manufacture, and possession of certain controlled substances. ^[10] Despite small technical changes to the statutes themselves, the use and possession components have remained identical to their original enactments. ^[11]

B. Judicial Interpretation

1. The Court's Initial Reading: Collins v. State.

Judicial interpretation of the Alaska weapons statute has been limited, especially with regard to the use statute. ^[12] However, the court of appeals has recently been very active in interpreting the possession statute. ^[13] The court's first chance to consider the possession statute [*pg 338] came in Collins v. State. ^[14] In Collins, a defendant was arrested when Anchorage police responded to an anonymous tip that drug sales were occurring in a certain apartment. ^[15] During their search, the police found the defendant and two other people. ^[16] In the defendant's room, the police also found two handguns, various drug paraphernalia, and a drug-sale record. ^[17] The defendant was subsequently convicted under section 11.61.195 on the basis that he simultaneously possessed the firearms and the drugs. ^[18] Indeed, the jury was instructed that, in order to convict the defendant under the possession statute, the State needed only to establish that the event actually occurred and that the defendant "knowingly possessed a firearm during the commission of a felony drug offense . . . ." ^[19] The jury, however, received no further explanation pertaining to the phrase "during the commission of a felony drug offense." ^[20]

After his conviction, the defendant filed a motion for judgment of acquittal, arguing that the statute required proof of some connection between the firearm and the drug offense. ^[21] The trial judge expressed preliminary agreement with the defendant's interpretation of the statute and asked the parties to submit supplemental briefs on the subject. ^[22] In its brief, the State conceded that the statute required proof of a nexus between, not just simultaneous possession of, drugs and a firearm. ^[23] However, the State argued that as long as the defendant was "emboldened" by the presence and availability of the firearm, proof of use or threatened use was not required. ^[24] The State also argued that the fact that the drugs and guns were found in the same location effectively proved a nexus between them. ^[25] The trial judge denied the defendant's motion. ^[26]

[*pg 339]

The court of appeals reversed the trial judge's ruling. ^[27] Specifically, the court found that because the State conceded that the statute required proof of an additional element (or nexus), the indictment lacked a necessary element. ^[28] In addition, the court held that if a nexus were an element, the jury should have been instructed as to the nexus requirement and should have made a finding as to that element. ^[29] Since neither event occurred at Collins' trial, the conviction was flawed, regardless of whether the State adequately proved a nexus. ^[30] Furthermore, the court of appeals rejected the State's contention that a crime under section 11.61.195 is committed whenever someone "simultaneously commits a drug felony and possesses or exercises control over a firearm -- even a firearm located in another place." ^[31] In doing so, the court noted that the State's interpretation would drastically increase sentences whenever a drug user happened to be a gun owner. ^[32] Accordingly, the court concluded that section 11.61.195(a)(1) required proof of a "nexus between a defendant's possession of the firearm and the defendant's commission of the felony drug offense." ^[33] However, the court specifically declined to define the contours of the nexus. ^[34]

2. The Court's Latest Opinion: Murray v. State.

The court of appeals received its opportunity to define the nexus in Murray v. State. ^[35] In Murray, officers responded to a defendant's hotel room in search of a dead body. ^[36] Instead of a dead body, however, the officers found the defendant, who claimed that his girlfriend was currently in possession of cocaine and was driving around town in his car. ^[37] When the officers stopped the car, they contacted the defendant, who consented to a search of the car. ^[38] During the [*pg 340] search, the officers uncovered marijuana and a crack pipe. ^[39] The defendant subsequently arrived at the traffic stop and volunteered that he had given his girlfriend the marijuana. ^[40] In addition, he claimed that he had about a quarter-pound of marijuana and a handgun...