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Moore v. State2/12/2003
NOTICE Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited as binding precedent for any proposition of law.
MEMORANDUM OPINION AND JUDGMENT
No. 4667
A jury convicted Lee R. Moore of two counts of misconduct involving a controlled substance in the third degree and one count of theft in the third degree. Superior Court Judge Dale O. Curda imposed a composite sentence of 8 years and 4 months. Moore appeals his convictions and his sentence. We affirm Moore's convictions but remand his sentence for reconsideration.
The charges against Moore were based on the testimony of Bryan Palmer, a paid confidential informant who was working for the Bethel Police Department. Palmer testified that he purchased cocaine from Moore on numerous occasions. On January 14, 2000, he purchased .1 gram of cocaine from Moore for $200. Palmer also testified that he purchased .1 gram of cocaine from Moore on January 24, 2000. Moore was charged with theft for taking $200 from Palmer as payment for cocaine on February 2, 2000 but failing to deliver the cocaine.
Bethel Police Officer Andre Achee and Alaska State Trooper Terry Asberry testified how they worked with Palmer in setting up the cocaine purchases. The State also introduced tape recordings of several telephone conversations between Moore and Palmer in connection with the transactions. The officers did not testify that Moore was arrested or about any circumstances surrounding his arrest.
Moore testified that Palmer told him that he needed a place to stay and that he allowed Palmer to stay at his house. Moore also testified that while Palmer was staying with him, Palmer was using drugs, facing financial difficulties, and needed money. Palmer admitted he was addicted to cocaine and that he had previously brought money and cocaine into Moore's home. Moore testified that he did not sell any cocaine to Palmer and denied taking any money from him. Following the presentation of the evidence, the jury convicted Moore on the three charges.
Moore's right to remain silent
Moore testified during his direct examination that he did not sell any cocaine to Palmer and that he did not take any money from him. At the beginning of the prosecutor's cross-examination of Moore, the prosecutor asked Moore whether he had ever previously related the substance of his testimony to anyone. Moore's attorney objected, arguing that Moore had "a right to remain silent." A bench conference followed. At the bench conference, the prosecutor argued that she was entitled to ask Moore whether he had ever told anyone before what he had testified to. She argued that the question was relevant to attack Moore's credibility. Moore's attorney responded that it was improper to ask someone who had been arrested and warned of his Miranda rights about whether he had made any statements. The prosecutor responded that she was not asking Moore about any custodial statements. Judge Curda overruled the objection. The prosecutor's questioning continued as follows:
Q. And the question was, Mr. Moore, that you have never told anybody the story that you're telling us today, have you?
A. No, I haven't.
Q. Okay.
A. And the reason why, is because I've been incarcerated for five months. This is my first time ever being on the stand to talk to anybody. The first time I've had a lawyer in five months, okay?
During closing arguments, the prosecutor stated:
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