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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
KRISTOPHER M. MARCY, )
)
Appellant, ) Court of
Appeals No. A-2911
) Trial
Court No. 4FA-S88-1735CR
v. )
)
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1183 - December 20, 1991]
______________________________)
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Jay Hodges, Judge.
Appearances: S. Joshua Berger, Fairbanks,
for Appellant. William H. Hawley, Assistant
Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats, Judge,
and Andrews, Superior Court Judge.*
[Mannheimer, Judge, not participating.]
ANDREWS, Judge.
Kristopher M. Marcy was convicted of first-degree
murder, AS 11.41.100, first-degree sexual assault, AS
11.41.410(a)(1), and first-degree burglary, AS 11.46.300(a)(1).
He was sentenced to a total of one hundred thirty-nine years for
the current offenses and seven and one-half years of suspended
time was reimposed on two cases in which his probation was
revoked.1 His parole eligibility was restricted for ninety-seven
years.
Marcy appeals his conviction on several grounds.
First, he contends that the confession he gave on June 30 should
have been suppressed because it was tainted by an involuntary
confession which Marcy made on June 28. Second, Marcy claims
that his sexual assault conviction must be reversed because the
prosecution was unable to prove that the victim was alive when
sexually penetrated. Third, Marcy argues that the sentencing
judge was clearly mistaken in imposing one hundred forty-six and
one-half years and restricting parole. Finally, Marcy asserts
that the trial judge erred by summarily dismissing his
application for post-conviction relief when it was apparent that
the attorney representing Marcy on the application was
ineffective. We affirm.
I. FACTS
Fifty-nine-year-old S.K. was stabbed to death in the
yard behind her trailer-home on June 12, 1988. She had been
stabbed twenty-six times in her head, neck, and torso. She had
ten additional knife wounds on her arms and hands that appeared
to be inflicted while she attempted to defend herself. There was
other physical evidence of a struggle.
Dr. Michael T. Propst, the doctor who performed the
autopsy, concluded that S.K. had been sexually penetrated. Dr.
Propst testified that S.K. could have lived as long as five
minutes after receiving the stab wounds.
Trooper James M. McCann investigated the murder and
concluded that the murderer had entered the trailer through a
front window. The person who entered stepped on a stereo
cabinet, on which McCann observed a footprint. After McCann
photographed and measured the impression, he determined that the
imprint on the stereo was made by an eleven-inch (size nine)
Reebok tennis shoe. The troopers discovered that on
June 11, 1988, the night before the murder, Marcy went driving
with Frank Heffle and Heffle's girlfriend, Daphne Evans. The
three rode in Marcy's truck and were together until four or five
the next morning, when Marcy left Heffle and Evans at Evans's
residence. Marcy wore white Reebok sneakers while he was with
Evans and Heffle. Heffle stated that Marcy always kept a six- or
seven-inch folding knife with an inoperable lock in the truck.
Heffle saw the knife for the last time shortly before the murder.
A few hours after Marcy left Heffle and Evans at home,
Marcy telephoned the Evans residence. Evans answered the phone
around 9:00 a.m. Marcy sounded excited. Evans gave the phone to
Heffle and Marcy told Heffle he had just killed somebody.
During his one to one and one-half hour conversation
with Heffle, Marcy described the murder in detail. He repeated
that he had killed a lady because she had "pissed him off." He
described the woman he had stabbed as in her sixties. He stated
that he had stabbed her several times in the neck and chest and
that one stab had caused profuse bleeding. He told Heffle he was
covered in blood. He stated that he had left the victim on the
back lawn outside the back door and that he had to hurry to leave
S.K.'s residence because he knew that the victim's daughter
planned to pick her up for church that morning. Marcy told
Heffle that when he parked his truck by S.K.'s trailer "he kind
of had a[n] idea of what he was going to do" and consequently he
put on gloves and parked his truck away from the residence.
According to Heffle, Marcy claimed that he had found
S.K. while she was hitchhiking in her bathrobe. He claimed that
she led him to believe that they would have sex; however, S.K.
refused to have sex with Marcy when they arrived at her residence
and Marcy told Heffle that he "went off" and killed her.
Marcy told Heffle that he had disposed of the knife.
He stated that he was naked because he was washing the clothes he
had worn during the murder. He told Heffle that he had cut
himself during the murder because the knife had closed and his
fingernail was "sliced pretty good." Marcy asked Heffle not to
tell anyone about the murder.
Heffle immediately told Evans about the conversation.
Specifically, Heffle told Evans that Marcy claimed to have
stabbed a woman about twenty-five times in the neck and the chest
and that blood had spouted out of her body.
Heffle thought that Marcy might have lied about the
murder. However, Heffle began to believe Marcy after a story
about the murder appeared in the paper the next day. As they
were riding in Marcy's truck, Heffle read the story. Marcy
looked over at Heffle and said, "See, I told you." Heffle
recognized the last name of the victim as that of Marcy's best
friend. Marcy admitted to Heffle that the victim was his best
friend's mother.
On June 18, Marcy and Heffle were riding in Marcy's
truck when Marcy was arrested for driving under the influence.
According to Heffle, Marcy was wearing his white Reebok shoes.
The arresting officer photographed and measured the shoes. The
sneakers were eleven-inches long.
After he left jail, Marcy told Heffle that he was
worried because the police had examined his tennis shoes. Heffle
told Marcy to throw them away. Marcy put his shoes in a sack,
put the sack into the back of his truck, and later disposed of
the shoes. On June 21, McCann interviewed Marcy, who
admitted that he knew S.K., but he claimed that he had not seen
her for at least two and one-half years. McCann interviewed
Marcy again on June 28. Marcy admitted that he had been in
S.K.'s trailer to commit a burglary, but he denied sexually
assaulting or murdering S.K.
Subsequently, on June 29, 1988, Marcy was arrested for
the current offenses. When he was arrested, Marcy had a cut in
the tip of his left index finger. He also had scratches on the
front and rear of his right arm and on his left wrist. Marcy
claimed that another person went into S.K.'s residence with him,
implying that this other person might have murdered and assaulted
S.K.
The day after his arrest Marcy sent a message from the
jail indicating that he wanted to speak with McCann. McCann
responded and Marcy gave a tape recorded interview. During the
interview, Marcy admitted killing S.K. According to McCann,
Marcy was scared, upset, and ashamed.
Marcy told McCann he remembered parking outside S.K.'s
residence and going through the window into the living room of
the trailer. He did not remember whether his knife was in his
pocket or open. At the time he saw the victim in the first
bedroom to the left, the blade of Marcy's knife was open. S.K.
woke and saw Marcy as he was closing the door. Marcy told McCann
that S.K. jumped out of bed, said something, and opened the door
again. He stabbed her in the stomach and walked backward to the
back door. S.K. followed saying, "Kris" and asking, "Why?"
Marcy said that he opened the back door of the trailer
while S.K. continued to say, "Kris." Marcy started out the back
door. S.K. tried to grab Marcy. Marcy stated, "Then I lose it,
I don't know what I'm doing. I see red in my eyes. Like it's
totally red. That's all I see." When his "eyes cleared" Marcy
could see S.K. "laying there." Marcy recalled standing above
S.K. and seeing blood "everywhere." He then ran to his truck.
Marcy claimed he did not know whether he had sex with
S.K. He claimed that if he did, it happened outside. Later,
however, Marcy said he knew he had been sexual with the victim,
because his "mother said there was body fluids." He eventually
remarked, "It had to have been outside cause I don't remember
doing it inside." Marcy added that he did not know whether she
was alive or dead when he had sex with her. Marcy claimed a
general loss of memory. He stated that he only remembered the
stab to the stomach and that he was wearing his Reebok tennis
shoes. He did not remember what he did with the knife or the
clothing he had been wearing.
Chris W. Beheim, a criminalist and footwear expert,
testified that the shoe print on the stereo cabinet in S.K.'s
trailer and the cast taken of the shoe print in the driveway were
similar to enlargements of the police pictures of Marcy's Reebok
shoes. James Wolf, another criminalist, testified that the
driver's side door and back wall of the cab in Marcy's truck
reacted positively to presumptive tests for blood.
FBI agent Audrey G. Lynch testified that semen was
present on the swabs taken from S.K.. Lynch claimed that the
semen most likely came from a non-secretor. Non-secretors
comprise about twenty percent of the population. Marcy was
determined to be a non-secretor. Lynch also reported that human
blood was found on a pair of jeans and a sock which were found in
Marcy's truck. FBI agent Allyson Simons testified that hair
found in S.K.'s right hand, on S.K.'s clothing, and on S.K.'s
quilt matched hairs taken from Marcy.
The jury convicted Marcy of first-degree murder, first-
degree sexual assault, and first-degree burglary.
II. ADMISSIONS AND CONFESSIONS
Marcy made two confessions to police officers investi-
gating the case. The first was made on June 28, 1988; the second
on June 30, 1988. In his testimony, McCann referred to the June
28 confession in which Marcy admitted being in S.K.'s residence
but denied the murder or sexual assault. The June 30, 1988,
confession was played to the jury. Marcy claims that the first
confession was involuntary and that it tainted the second
confession. Consequently, he argues that both confessions should
have been suppressed.
Marcy cites several reasons why his June 28 confession
was involuntary. First, he claims that McCann admitted at trial
that he had lied to Marcy to prompt him to confess.
Specifically, he asserts that McCann lied to him about finding
Marcy's fingerprints on S.K., observing Marcy's truck at S.K.'s
residence, and using special lasers at the crime scene.2
McCann testified that he lied when he told Marcy that
police officers had seen his truck at S.K.'s residence. McCann
also testified that he created an illusion that the police had
found Marcy's fingerprints, when in fact there were no
identifiable prints but merely blood smears.3 McCann never
claimed that the police had used special lasers -- he merely
claimed that the police officers would use special lasers when
investigating the crime.4
Marcy never asked the trial court to suppress either
confession, although he claims that he urged his counsel to
request suppression. According to case law, an admissible
confession needs the following:
[It] must be free and voluntary; that is,
[it] must not be extracted by any sort of
threats or violence, nor obtained by any
direct or implied promises, however slight,
nor by the exertion of any improper
influence.
Bram v. United States, 168 U.S. 532, 542-43 (1897) (quoted in
Sovalik v. State, 612 P.2d 1003, 1006 (Alaska 1980) and Sprague
v. State, 590 P.2d 410, 413 n.6 (Alaska 1979)). The
circumstances which the court should consider when determining
the voluntariness of a confession are:
[T]he age, mentality and prior criminal
experience of the accused; the length,
intensity and frequency of interrogation; the
existence of physical deprivation or
mistreatment; and the existence of threat or
inducement.
Sovalik, 612 P.2d at 1006 and Sprague, 590 P.2d at 414 (quoting
Brown v. United States, 356 F.2d 230, 232 (10th Cir. 1966)).
In Sovalik, the Alaska Supreme Court held that
Sovalik's confession was voluntary even though the authorities
had lied when they told him that his fingerprint had been found
on a bottle at the crime scene. 612 P.2d at 1007. The court
reasoned that "this artifice was not coercive and [was] not one
which would have a tendency to produce an untruthful confession."
Id. Furthermore, the court stated that trickery in obtaining a
confession is only one factor in determining whether the
confession was voluntary. Id. at n.4. The court noted trickery
alone does not render a confession inadmissible and most
authorities hold that confessions which result from trickery are
admissible so long as the tricks would not tend to produce an
untruthful confession. Id. at n.4 (citing Annot. 99 A.L.R.2d
772, 783 (1965)).
In the present case, Marcy's failure to object below to
the admission of his statements on the grounds of voluntariness
deprived the superior court of the opportunity to conduct an
evidentiary hearing to determine the totality of the
circumstances surrounding the making of the challenged
statements. It is impossible to predict what additional evidence
the state may have presented on the voluntariness issue had it
been raised. Moreover, there is no way of determining whether
Marcy's trial counsel deliberately elected not to challenge the
admissibility of the statements. Marcy's claim that he had
blacked out and remembered nothing about the stabbing enabled him
to argue that he did not intentionally kill his victim and was at
most guilty of second-degree murder. Because this claim was set
forth in the disputed statements, trial counsel may have decided
to forego claiming that the statements were involuntary.
Under the circumstances, there is a strong argument
that Marcy's failure to raise the voluntariness issue in a timely
manner amounts to a forfeiture and precludes further
consideration of the issue except in a post conviction relief
proceeding, upon a showing of cause and prejudice. See, e.g.,
Wainwright v. Sykes, 433 U.S. 72 (1977); Moreau v. State, 588
P.2d 275, 280 (Alaska 1978). In any event, Marcy is at most
entitled to review for plain error at this stage. On the current
record, we hold that the trial court did not commit plain error
by failing to suppress the challenged statements sua sponte.
III. SEXUAL ASSAULT CONVICTION
The sexual assault offense was charged and presented in
the alternative: the jury was told that it could convict Marcy
if he sexually penetrated S.K. without her consent, or if he
caused serious injury by attempting to sexually penetrate S.K.
The jury answered an interrogatory indicating that they
unanimously agreed that Marcy had penetrated S.K. without her
consent. The jury did not answer the next interrogatory which
asked whether Marcy had only attempted to penetrate S.K.
Marcy argues that a conviction under AS 11.41.410(a)(1)
requires proof that the defendant sexually penetrated a live
victim.5 He claims that if the evidence does not establish that
the victim was alive, the crime is not rape, but rather the
misdemeanor offense of misconduct involving a corpse. Marcy
argues that the evidence was insufficient to find that S.K. was
alive when penetrated.
When reviewing whether sufficient evidence was offered
to sustain a conviction this court "will consider only those
facts in the record most favorable to the prosecution and such
reasonable inferences as a jury may have drawn from them."
Dorman v. State, 622 P.2d 448, 453 (Alaska 1981) (quoting Martin
v. City of Fairbanks, 456 P.2d 462, 464 (Alaska 1969)).
Regardless of whether this statute requires a live
victim, a question we do not decide, the state presented
sufficient evidence to allow the jurors to conclude that S.K. was
alive at the moment of penetration.
Dr. Propst testified that S.K. could have lived as long
as five minutes. Marcy told Heffle that he "lost it" and killed
S.K. because she refused to have sex with him. The jury could
reasonably infer that if Marcy's primary goal was to have sex
with S.K., he would not wait long to penetrate her after
rendering her defenseless. In addition, Marcy told Heffle that
his clothing was "soaked" with blood. Since the blood was not
dry when Marcy reached his home, it is reasonable to infer that
the stabbings, the penetration, and Marcy's drive home took place
within a relatively short period of time. Furthermore, there was
other physical evidence concerning the position of the victim's
legs and the onset of rigor mortis from which the jury could have
reasonably inferred that Marcy sexually penetrated S.K. before
she died. See State v. Holt, 382 N.W.2d 679, 685 (Wis. App.
1985) (under circumstances similar to those in the current case
the court held that in a rape-murder case where the exact
sequence of events cannot be proved, the jury may reasonably
infer . . . that the victim was alive during the sexual assault).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Marcy argues that Judge Hodges erred by summarily
denying his application for post-conviction relief, based on an
ineffective assistance of counsel claim, because it was apparent
that Marcy's post-conviction attorney was also ineffective.
Specifically, Marcy contends that his attorney was obviously
ineffective because he failed to respond to the state's motion to
dismiss and the court's notice of intent to dismiss. The court
ultimately dismissed the case because Marcy, by failing to
respond, did not establish a prima facie case of ineffective
assistance of counsel.
The trial court did not abuse its discretion by
dismissing the application. Marcy's counsel's failure to respond
to the state's opposition and the court's notice, by itself, does
not establish that he was ineffective. It is possible that
counsel chose not to respond because Marcy could not make out a
prima facie case of ineffective assistance. Furthermore, even if
the dismissal of his post-conviction application was due to
attorney incompetence, Marcy has failed to show that the
dismissal has prejudiced him. He has not shown that the court
would not consider the ineffectiveness claim in a second
application. The trial court did not abuse its discretion by
denying Marcy's application for post-conviction relief.
V. SENTENCE CLAIM
Marcy received consecutive sentences of ninety-nine
years for his murder conviction, ten years for his burglary
conviction, and thirty years for his sexual assault conviction.
His probation was revoked on two earlier cases, and seven and one-
half years were imposed. Judge Hodges thus sentenced Marcy to a
total of one hundred forty-six and one-half years. He restricted
Marcy's parole for ninety-seven years.
Marcy claims that his sentence and parole restriction
are clearly mistaken. He argues that a sentencing court may not
impose consecutive sentences of more than ninety-nine years and
restrict parole unless it has found that the defendant will pose
a danger to society during his or her entire life. Finally, he
asserts that Judge Hodges's finding that Marcy was not amenable
to treatment was mistaken since he did not review a current
psychological or psychiatric evaluation.
A. The Offender
Marcy was twenty-three years old when sentenced. He
had an extensive criminal record. As a juvenile, he was charged
with minor in possession, theft, and unlawful entry to commit
theft. He was adjudicated delinquent on the unlawful entry
charge. While on probation for the unlawful entry charge, he was
charged with joyriding and a petition to revoke was filed
alleging two probation violations because two of his urine
samples tested positive for marijuana. The hearing on the
petition to revoke was continued until the day before Marcy's
eighteenth birthday. At the hearing on June 17, 1983, a
probation officer testified that Marcy was not amenable to
probation as an adult.
In 1984, Marcy, as an adult, was convicted of first-
degree burglary. He received a suspended sentence and probation.
In June 1984, his probation was revoked because he unlawfully
used his parents' checks. In October, only four months after
this probation revocation, Marcy failed to appear in court on a
reckless driving charge and was ordered to serve nine days. In
December 1984, Marcy was convicted of shoplifting and failure to
appear on a traffic charge. In February 1985, Marcy was
convicted of failure to show an operator's license, failure to
stop, minor in possession and consuming alcohol, minor on
premises, failure to pay a fine, failure to appear at
arraignment, and failure to appear on the minor in possession
charge. One month later, in March 1985, Marcy's suspended
sentence on the first-degree burglary charge was revoked, and
Marcy was sentenced to five years with four and one-half years
suspended. While serving this six-month sentence, Marcy was
charged with and convicted of third-degree assault and first-
degree weapons misconduct. Consequently, Marcy was sentenced to
three years on the assault charge, and three years suspended on
the weapons misconduct charge. Marcy was released from
incarceration on May 9, 1988, and a little more than one month
later, on June 12, he committed the current offenses. On June
18, 1988, Marcy was arrested for driving under the influence
(DUI). He was convicted of DUI in December 1988.
Judge Hodges reviewed Marcy's criminal record and
remarked:
[The] [c]ourt must take into account the
probability of successful rehabilitation of
Mr. Marcy into a non-criminal and non-
offending member of society. Mr. Marcy's
past record indicates that his lack of --
that he has a total lack of rehabilitative
potential. He first became involved in the
criminal justice system as a juvenile; had a
record as a juvenile. Shortly after release
from juvenile probation, juvenile
authorities, was involved in a felony
burglary. Not long after, and while on
probation, with respect to the burglary
offense, became involved with an assault as
well as a misconduct involving weapons in the
first degree. . . . Upon completion of that
sentence, within weeks of his release from
custody and on probation, he committed this
offense. Mr. Marcy has served a relatively
substantial period of time in custody. He's
been involved in two separate cases -- two
separate occasions with the criminal justice
system for felonies. He's had probation
revocations; in addition, he has a
substantial misdemeanor record. This
indicates he's an habitual criminal, a worst
offender in light of his prior record alone.
With respect to this offense, as the court
has determined, it's the worst with respect
to these type[s] of offenses. There's an
absolute necessity to isolate Mr. Marcy from
society so that he will conform his conduct
to acceptable standards. His past record
shows that he's not amenable to treatment.
With[in] relatively short periods of time of
his release from
probation/parole/incarceration or while on
probation, he engages in criminal conduct.
In addition to the substantial crimes which
he committed in this offense --in this case,
while on probation, he was involved with
operating a motor vehicle while under the
influence. None of which speaks well for his
rehabilitative potential. As the court
mentioned, it's necessary to isolate him so
it will conform his conduct. Mr. Marcy is a
dangerous person. There's no sentence other
than incarceration which will deter Mr. Marcy
from criminal conduct. It's been proven in
the past, and he's demonstrated to this court
as well as to society as a whole, that unless
he's incarcerated he will continue to commit
criminal offenses. . . . In this case the
court places emphasis on reaffirming societal
norm -- norms, deterring others and isolating
Mr. Marcy. As the court mentioned, it's hard
to imagine [a] more serious burglary, [a]
more serious sexual assault. There certainly
may be, but when you reach a certain level,
whether they're more serious, more aggravated
or not, is of no consequence to the maximum
penalty that should be imposed. As the court
indicated, Mr. Marcy is the worst offender
within the class sexual assault in the first
degree, burglary in the first degree. He can
be characterized as a worst offender in light
of his prior record, in light of the time
that he's spent incarcerated. It's his third
felony conviction for purpose of [a]
presumptive sentence. His current attitude
and progress, in terms of rehabilitation, is
non-existent. Anyone who is released from
custody and within weeks of the time, commits
this type of offense is not amenable to
treatment. This offense is serious, among
the most serious as the court has found. Mr.
Marcy's a dangerous offender. This court
feels, under those circumstances and for the
reasons set forth, that a maximum sentence
should be imposed to insure that Mr. Marcy
remains behind bars. . . . [The] [c]ourt
feels that it's absolutely necessary to
incarcerate Mr. Marcy so that he is not
released from custody, to insure the safety
of the public, so that Mr. Marcy will not
commit any other offenses.
B. The Offense
Judge Hodges found several aggravators. Under AS
12.55.155(c)(1),(4), and (10), he found that the sexual assault
and burglary charges were aggravated by three factors:
1) someone other than an accomplice sustained injury;
2) Marcy employed a dangerous instrument; and
3) the offenses were among the most serious in their
class.
The convictions in general were aggravated because according to
AS 12.55.155(c)(5),(2),(15) and (20):
1) The victim was particularly vulnerable;
2) Marcy evinced deliberate cruelty;
3) The defendant had been convicted of three of more
prior felonies;
4) The defendant was on probation or parole at the
time the current offenses were committed.
The burglary conviction was aggravated because the defendant had
committed offenses similar to the burglary charge. AS 12.55.155
(c)(21). Marcy has not claimed that the court erred by finding
these aggravators.
C. Discussion
1. Consecutive Sentences and Parole Restriction
Marcy asserts that a sentence which exceeds ninety-nine
years can only be justified if the court finds it necessary to
imprison the defendant for life. Marcy claims that the record
did not show that he would be a danger to society after serving
ninety-nine years. Consequently, he argues that imposing
consecutive sentences and a parole restriction was improper.
Marcy's claim that consecutive sentences were
unjustified lacks merit. Marcy argues that Page v. State, 657
P.2d 850, 854 (Alaska App. 1983), supports his position. Page
received a ninety-nine year sentence on a second-degree murder
charge and a consecutive twenty-year sentence on a first-degree
robbery conviction. Id. at 855. This court held that the
consecutive sentences were not justified since "nothing in the
record supports a finding that Page will continue to be a danger
after the expiration of ninety-nine years." Id. We held
consecutive sentences were not warranted even though the record
showed that Page lacked any remorse for the brutal murder which
involved multiple stab wounds. Id. at 854-55. Furthermore, Page
had an extensive criminal record. He had failed to benefit from
past probationary supervision, and had failed to address his drug
problems in a court-assigned drug rehabilitation unit. Id. We
noted, however, that Page's past crimes did not involve injury to
persons. Id. See also Ridgely v. State, 739 P.2d 1299, 1303
(Alaska App. 1987) (court improperly imposed burglary and theft
sentences consecutive to murder sentence since the offenders were
youthful and had not previously committed violent crimes).
Page, however, is distinguishable from Marcy. Page was
convicted of second-degree murder and Page's previous offenses
did not involve injury to people. Conversely, Marcy had
previously been convicted of assault and weapons misconduct. In
addition, the nature of Page's crimes differ from Marcy's crimes,
indicating that Marcy poses more of a threat to society. Page's
testimony suggested that he killed his victim in response to
provocation. Marcy, however, stalked his best-friend's mother.
He planned to commit his crime when he knew the victim would be
alone and most vulnerable. S.K. pleaded with Marcy and attempted
to escape, but Marcy continued his brutal assault.
In Nukapigak v. State, 663 P.2d 943, 946 (Alaska 1983),
the court affirmed three consecutive ninety-nine year sentences
for the first-degree murder of three victims. The court noted
that consecutive sentences had generally been approved where the
offender harmed more than one victim. Id. at 945. The court
upheld the consecutive sentences noting the heinous nature of the
crimes and a record devoid of any hope for rehabilitation. Id.
at 946. Furthermore, Nukapigak had prior convictions for
assaulting his wife and for raping and assaulting another woman.
Id.
In Krukoff v. State, 702 P.2d 664 (Alaska App. 1985),
this court upheld two consecutive sentences of ninety-nine years
for two counts of first-degree murder. We recognized that
Krukoff's criminal record involved several felony and misdemeanor
assaults. Id. at 666. In addition, Krukoff failed to benefit
from five years of incarceration and participation in an alcohol
treatment program. Id.
Although Nukapigak murdered three people, and Krukoff
murdered two victims, the supreme court and this court did not
state that consecutive sentences were permissible only because
the defendants had killed more than one person. Rather,
consecutive sentences were imposed because "there was no way of
assuming that society would ever be safe if [the defendants] were
released from prison." Nukapigak, 663 P.2d at 945-46; Krukoff,
702 P.2d at 666. See Weitz v. State, 794 P.2d 952, 958 (Alaska
App. 1990) (consecutive sentences exceeding ninety-nine years may
be imposed even though defendant did not murder multiple
victims).
The sentencing judge could have properly concluded that
Marcy, like Nukapigak and Krukoff, is a defendant from whom
society may never be safe if released from custody. Marcy
committed these heinous offenses within a few weeks of being
paroled. When not incarcerated, Marcy repeatedly committed
crimes, and violated probation and parole conditions. His
offenses continually increased in severity. At sentencing, he
denied the murder and sexual assault. Given the nature of
Marcy's current offenses, and his abysmal failure to conform his
conduct to societal norms, for even a short period of time, Judge
Hodges' imposition of consec-utive sentences was not clearly
mistaken.
Similarly, the parole restriction was not clearly
mistaken. As noted, the court could properly assume that Marcy
would remain a danger to society throughout his life. See Weitz
v. State, 794 P.2d 952, 953 (Alaska App. 1990) (sentence of one
hundred sixty-nine years with no eligibility for parole not
clearly mistaken for defendant convicted of first-degree murder,
first-degree robbery, third-degree assault, first-degree weapons
misconduct, and two counts of attempted first-degree murder);
Newell v. State, 771 P.2d 873, 876-77 (Alaska App. 1989).
2. Absence of Psychological Report
Marcy argues that Judge Hodges should not have
restricted his parole without relying on a psychiatric or
psychological report.
Generally, the trial court should not enhance a
sentence based upon a finding that the defendant demonstrated an
antisocial nature or dangerous propensities without the aid of a
psychiatric or psychological evaluation of the defendant. Pruett
v. State, 742 P.2d 257, 260 n.3 (Alaska App. 1987); Salud v.
State, 630 P.2d 1008, 1013-14 (Alaska App. 1981). See also Tommy
v. State, 551 P.2d 179, 180 (Alaska 1976) (court should not have
sentenced a twenty-three-year-old without the aid of a current
psychiatric report, when a four-year-old presentence report
indicated that the defendant needed psychiatric help). However,
when the record does not reflect a defense request for such an
evaluation prior to sentencing, and the defendant fails on appeal
to indicate how such an evaluation could have benefitted him at
sentencing, the trial court's sentence is properly imposed
without the evaluation. Spencer v. State, 642 P.2d 1371, 1376
(Alaska App. 1982). See also Brown v. State, 578 P.2d 982, 984
(Alaska 1978) (court could impose sentence without recent
psychological report since defendant failed to show that a recent
report would differ from a report made three years before the
commission of the current offense).
[W]hile this court has recognized the
importance of psychological and psychiatric
data as an aid in arriving at sentences which
further the goals of penal administration, we
have also held that such evaluations are not
indispensable or necessary in every case, and
that the absence of a psychiatric evaluation
does not necessarily require us to set aside
a sentence.
Walton v. State, 568 P.2d 981, 984 (Alaska 1977) (citing Adams v.
State, 521 P.2d 516, 518-19 (Alaska 1974)). Thus, when a
sentence is justified by a defendant's criminal record and
personal background, it is not mistaken, even if it is made
without the benefit of a psychological examination. Horton v.
State, 570 P.2d 482, 483 (Alaska 1977). This is particularly
true when the defense has not suggested that the defendant
suffers from a "treatable mental illness or that such a mental
illness influenced his criminal activity." Spencer, 642 P.2d at
1377 n.5.
In the current case, an unidentified speaker noted that
the court was imposing the sentence without a psychological or
psychiatric report. The defense, however, never objected to the
court's imposition of a sentence without such a report.
Furthermore, Marcy has not indicated how a report could have
benefitted him at sentencing.6 He has never suggested that he
suffers from a treatable disease which caused him to commit the
crime. In fact, Marcy denied committing these offenses at
sentencing. Consequently, the court was not mistaken in imposing
the sentence, including the parole restriction, by relying on
Marcy's criminal record and personal background.
VI. CONCLUSION
The court did not err by admitting Marcy's June 30
confession into evidence. The evidence was sufficient to find
that S.K. was alive when penetrated. The court did not abuse its
discretion by dismissing Marcy's application for post-conviction
relief. The sentence and parole restriction are not mistaken.
We AFFIRM.
_______________________________
*Sitting by assignment made pursuant to article IV,
section 16 of the Alaska Constitution.
1 The two cases for which Marcy was on probation
involved a conviction for burglary, case 4FA-S83-4261, and a
conviction for third-degree assault, case 4FA-S85-1061.
2 Marcy also claims that McCann lied to his mother,
Kay Marcy. According to Ms. Marcy, McCann told her that they had
found Marcy's fingerprints and body fluids at the scene, and some
of S.K.'s belongings in Marcy's possession. At trial, McCann
denied telling Marcy's mother that he had found items in Marcy's
possession which had been taken from the victim's residence. In
any event, Marcy does not explain how McCann's lies to his mother
caused him to confess. He merely states that his mother visited
him on June 29, 1988, and shortly after the visit he confessed to
the murder. Given this record, McCann's alleged lies to Marcy's
mother can not be deemed to have rendered Marcy's June 30
confession invalid.
3 The questions and answers regarding the fingerprints
went as follows:
Q [McCann]: Something happened.
Something happened ah, Kris.
A [Marcy]: Why.
Q: We got your bloody prints on her
leg, okay. Now I don't know what
happened between you, she came at you, I
don't know what the deal is . . .
A: My bloody prints, no, no.
Q: (Inaudible) that's right buddy.
A: No, no.
Q: That's right buddy.
A: No, no.
Q: That's right.
A: No, no.
Q: That's right.
A: No, uh'uh, uh'uh, no way, here take
blood right now.
Q: No.
A: Go ahead take blood right now.
That's not my blood, no, no.
Q: I didn't say your blood, we'll find
that from the semen.
4 The representation regarding the special lasers went
as follows:
Q [McCann]: Well, I, I'd just kind of
like to know some confirmation of kind
of ah, whether we're gonna be finding
your stuff on the, you know . . .
A [Marcy]: No.
Q: . . . we search everything with
magnifying glasses and everything . . .
A: Yeah, well, (inaudible) probably do,
you know.
Q: . . . special lasers. Yeah.
A: You know, I got some idea what you
guys do, what you guys got to do with,
you know.
5 At the time of these offenses, AS 11.41.410(a)(1)
and (2) stated that:
A person commits the crime of sexual
assault in the first degree if,
(1) being any age, the defendant
engages in sexual penetration with another
person without consent of that person;
(2) being any age, the defendant
attempts to engage in sexual penetration with
another person without consent of that person
and causes serious physical injury to that
person . . . .
6 We note that the defendant has the right not to
submit to a psychological or psychiatric exam. R.H. v. State,
777 P.2d 204 (Alaska App. 1989). There is nothing in this case
to suggest that the absence of a psychological exam was anything
other than an affirmative tactical decision on defense counsel's
part.
