ANCHORAGE — The case of a Wasilla man and wife accused of growing marijuana is taking root again in federal court in Anchorage.
Alaska State Trooper Kyle Young, who alleged he could smell an indoor pot farm from about 450 feet away — through the woods and over a hill — and said he could tell which property it came from, has been ordered to appear in court July 15 for a new evidentiary hearing in the case.
The case involves Trace and Jennifer Ann Thoms, who were busted in February 2010 for growing pot in a building next to their home. The case has been widely publicized, but has yet to make it to trial and pretrial motions have become very technical.
But here’s what we do know: Anchorage defense attorneys Rex Butler and Vikram Chaobal want to impugn Trooper Young’s story about smelling the Thoms’ pot farm from the road.
They did this before and a search warrant was thrown out, but prosecutors appealed. Now U.S. Magistrate Judge John D. Roberts has agreed to a do-over for a limited part of an earlier evidentiary hearing. Roberts has ordered federal prosecutors to bring Trooper Young to court Tuesday
This time, according to Roberts’ order, the defense has new evidence and plans to question Young about his sworn testimony in search warrant hearings from other cases — including one case in which a Palmer judge found Young willfully left out information.
The lawyers want to prove to Magistrate Judge Roberts that Young not only lied to get the search warrant, but that he has done the same thing in other cases as well.
The defense, Roberts wrote, “should be granted an opportunity to cross-examine Trooper Young regarding his pattern of misconduct so as not to deny him his constitutional right to confrontation in a key suppression motion brought prior to trial.”
Last week, the Alaska Court of Appeals issued an opinion in a criminal case that could lead to shorter prison sentences for some criminal defendants, especially people accused of drugs crimes that take place in their home. The case, Rofkar v. state, stems from the sentencing of a man convicted of running a marijuana grow operation at home in Sutton.
In 2006, Alaska State Troopers seized 111 marijuana plants and about 1.6 pounds of processed pot from a home rented by 46-year-old Sven Rofkar. Rofkar was convicted of four class C felonies: possession of more than 25 plants; possession of more than one pound of marijuana; possession of marijuana intended for sale; and maintaining a building for keeping or distributing controlled substances. Palmer Superior Court Judge Kari Kristiansen merged the first three counts when she sentenced Rofkar to five years in prison. Rofkar appealed, arguing the fourth charge should also be merged with the other three.
Attorneys in the Alaska Office of Public Advocacy represented him during the appeal and argued Kristiansen’s sentence violated the double jeopardy clause of the Alaska Constitution: “No person shall be put in jeopardy twice for the same offense.”
The Appeals Court cited the intent of the Alaska Legislature when lawmakers made it a felony to maintain a building for “keeping or distributing” controlled substances. That law was last revised in 1982. The court said the Legislature had just one example of the crime in its records: a landlord who knowingly rents the building to a drug dealer or pot grower.
“It appears the Legislature enacted [the law] to reach people who facilitate the commission of drug felonies by providing a building,” the opinion says.
The opinion says Rofkar’s composite conviction for manufacturing and possession “essentially encompassed his conduct of maintaining building,” so maintaining a building could not count as another crime.
The court ordered Kristiansen to combine the fourth count with the other three, and re-sentence Rofkar. It won’t matter much to Rofkar. He’s apparently done his time and is free, having served two five-year sentences concurrently.
Contact Scott Christiansen at firstname.lastname@example.org.